Types of privilege

Question 1

What are the three types of privilege?

Answer 1

1. Legal advice privilege
2. Litigation privilege
3. Without prejudice communications.

Question 2

What is legal advice privilege?

Answer 2

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

Question 3

Does litigation need to be contemplated to rely on legal advice privilege?

Answer 3

No.

Question 4

What does `confidential’ mean?

Answer 4

The principle is that a client should be able to get legal advice in confidence. If the document is not confidential, privilege will not apply..

Question 5

What does ‘communication between lawyer and client’ mean in relation to legal advice privilege?

Answer 5

Solicitor’s note of a conversation with client concerning legal advice will be confidential communication.

A solicitor’s attendance note of a conversation between parties, or of what happens at court, is not privileged since, there is no confidentiality in notes of matters at which both sides are present.

Question 6

Does legal advice privilege apply to advice of legal or quasi-legal nature given by non-lawyers?

Answer 6

No.

Question 7

What does continuum of communication mean?

Answer 7

Where a solicitor is retained primarily to provide legal advice, wider communications between solicitor and client, even if ancillary to that purpose, will be privileged because they fall within “continuum of communication”.

Question 8

Is presentational advice covered by legal privilege?

Answer 8

Yes, where lawyers are giving such advice through `legal spectacles’.

Question 9

If a client repeats internally legal advice provided by his lawyer is that protected by privilege?

Answer 9

If a client repeats internally legal advice provided by his lawyer, for example, to other personnel within his company, then that repetition also has the benefit of privilege.

However, whether what a client passes on is repetition of his lawyer’s legal advice or his own option is often debateable. Therefore, it is important to advise clients to be very careful about how legal advice gets disseminated to the board of a company for fear of losing legal advice privilege in relation to the advice.

Question 10

Can communications with in-house lawyers enjoy legal privilege?

Answer 10

Communications with in-house lawyers can also enjoy legal advice privilege before the English courts, 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 11

Does privilege attach to advice from qualified lawyers who are not employed in a legal role?

Answer 11

Unlikely.

Question 12

What is litigation privilege?

Answer 12

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 13

In relation to litigation privilege what does ‘communication between lawyer and client’ extend to?

Answer 13

Privilege also extends to documents which are brought into existence for the purpose of prosecuting or defending the claim e.g. memoranda from one lawyer in a firm to one of their colleagues relating to the litigation.

Question 14

What does for the ‘dominant purpose to obtain evidence/ advice for litigation in reasonable contemplation mean and what is the test?

Answer 14

If there is more than one purpose behind the preparation of a document, the court will look at the dominant purpose – the test, therefore, is one of dominance and not exclusivity. Establishing the dominant purpose of a document may be particularly difficult where documents have been produced for a dual purpose.

Question 15

What does it mean that litigation must be reasonably in prospect?

Answer 15

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

Question 16

What are without prejudice communications?

Answer 16

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

Question 17

What does `substance not form’ mean in relation to without prejudice communications?

Answer 17

The document need not be marked `without prejudice’ for the privilege to apply.

A document marked `without prejudice’ may not be a genuine attempt to settle and would therefore fall to be inspected.

Question 18

Will without prejudice communications be seen by the court?

Answer 18

Without prejudice documents will not generally be seen by the court unless privilege is waived.

Some documents are marked as being “without prejudice save as to costs” – this means the court will not see the document’s contents unless it is considering the costs of the action or a particular issue.

If it is considering costs, the judge is generally entitled to see the document and can take its contents into account when deciding the parties’ conduct and which party is liable for costs/the amount of costs payable.