Types of privilege

Question 1

What are the most important types of privilege?

Answer 1

a) legal advice privilege
b) litigation privilege
c) without prejudice communications

Question 2

What are some other types of privilege that practitioners may encounter?

Answer 2

• common interest privilege
• privilege against self incrimination
• public interest immunity

Question 3

Have these privileges been established by common law or statute?

Answer 3

Common law - their reach is defined by case law = subject to some interpretation & constantly developing

Question 4

What is legal advice privilege?

Answer 4

A document which is a confidential communication between a lawyer & client and was prepared for the dominant purpose of giving/receiving legal advice.

Question 5

If the document isn’t confidential, will privilege apply?

Answer 5

No.

Question 6

Is a solicitor’s note of a conversation with this client concerning legal advice confidential communication?

Answer 6

Yes, therefore it’s subject to legal advice privilege.

Question 7

Is a solicitor’s attendance note of a conversation between parties (normally between solicitors for each party), or of what happens at court, privileged?

Answer 7

No, even though the note is a communication, there’s no confidentiality in notes of matters at which both sides are present
- Parry v Newsgroup Newspapers 1990

Question 8

Does legal advice privilege apply to advice of a legal or quasi-legal nature given by non-lawyers (ie tax advice given by accountants)?

Answer 8

Not currently, no.

Question 9

When a solicitor is retained primarily to provide legal advice, will wider communications between solicitor & client, even if ancillary to that purpose, be privileged?

Answer 9

Yes, because they fall within the “continuum of communication”
- Balabel v Air India 1988

Question 10

Is the ‘presentational advice’ in question (advice including the most appropriate way to present info to the BIU) covered by legal advice privilege?

Answer 10

Yes - the key consideration is that lawyers give such advice through ‘legal spectacles’
(what should prudently & sensibly be done in the legal context of the case)
(case law)

Question 11

If a client repeats internally legal advice provided by his lawyer (eg to other personnel within his company), does that repetition have the benefit of privelege?

Answer 11

Yes (case law)
- has to be a repetition of his lawyer’s legal advice not his own opinion

Question 12

Can communication with in-house lawyers enjoy legal advice privilege before the English courts in civil actions?

Answer 12

Yes, as long as the communication concerns advice given in a legal capacity rather than a general commercial or executive capacity with no legal context.

Question 13

Is it likely or unlikely for privilege to attach to communications with individuals who are qualified lawyers but not employed in a legal role, even if they’re giving legal advice?

Answer 13

Unlikely.

Question 14

What is meant by litigation privilege?

Answer 14

A document which is a confidential communication which passed between the lawyer and his client or between one of them and a third party, where the dominant purpose in creating the document is to obtain legal advice, evidence or information for use in the conduct of litigation which was at the time reasonably in prospect.

Question 15

Does litigation privilege extend to documents which are brought into existence for the purpose of prosecuting/defending the claim?

Answer 15

Yes (example - memoranda from one lawyer in a firm to one of his/her colleagues relating to a litigation case, or drafts of statement of case)

• this is the case notwithstanding that they’re not communications between a solicitor and a client nor between one of them and a third party.

Question 16

If there’s more than one purpose behind the preparation of the document, which purpose will the court look at?

Answer 16

The dominant purpose - the test is of dominance not exclusivity
(some documents are created for a dual purpose - makes establishing the dominant purpose difficult).

Question 17

Litigation privilege - dominant purpose example

Answer 17

Following an incident on a railway, the railway faces a claim by an injured person. The railway produces a report for the dual purposes of improving safety on the railway & being submitted to the railway’s solicitors for legal advice. As the litigation was at best a purpose, not a dominant purpose, the report wasn’t privileged
- Waugh v British Railways Board 1980

Question 18

What is meant when the litigation for which the documents are to be used must be ‘reasonably in prospect’?

Answer 18

This means litigation must be a real likelihood rather than a mere possibility - a general apprehension of future litigation is insufficient.

Question 19

Litigation privilege - ‘litigation reasonably in prospect’ example

Answer 19

Documents produced by a company, not for specific litigation, but because it felt it was constantly under the threat of litigation by customers, weren’t privileged
- USA v Philip Morris 2003

Question 20

What are without prejudice communications?

Answer 20

A document whose purpose is a genuine attempt to settle a dispute.

Question 21

Does the document need to be marked ‘without prejudice’ for the privilege to apply?

Answer 21

No.

Question 22

What if a document is marked ‘without prejudice’?

Answer 22

It may not be a genuine attempt to settle and would therefore fall to be inspected
- the court will look at substance rather than form

Question 23

Will without prejudice documents be seen by the court?

Answer 23

Not generally, unless the privilege is expressly waived.

Question 24

What is meant when some documents are marked as being ‘without prejudice save as to costs’?

Answer 24

This means the court will not see the documents contents unless it’s considering the costs of the action or a particular issue
- if it’s considering costs the judge is generally entitled to see the document & can take its contents into account when deciding (eg) the parties conduct & which party is liable for costs/the amount of costs payable.

Question 25

What type of privilege do draft documents benefit from?

Answer 25

Litigation privilege.