Table of Contents
In Short
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Common interest privilege allows parties with shared legal interests to exchange privileged information without waiving confidentiality.
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The communication must be made after litigation has started or is anticipated, shared with someone who has a mutual interest and expected to remain confidential.
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This privilege is relevant for co-defendants, subsidiaries, parent companies, and insurer-insured relationships.
Tips for Businesses
When sharing privileged information with third parties who share your legal interests, ensure the communication meets the criteria for common interest privilege. Document the shared interest and maintain confidentiality to protect the privileged status of the information.
If you are subject to a disclosure order during litigation, you have a general duty to disclose relevant documents to the other side. In most cases, the other side can inspect these documents. However, in certain circumstances, you can withhold some documents that would otherwise be inspectable under various grounds of privilege. Common interest privilege describes documents you might have provided to a third party (other than your legal advisers) during litigation. This article will explain common interest privilege and provide examples of documents that might attract this kind of privilege.
What is the Difference Between Disclosure and Inspection?
It is worth pointing out that the law distinguishes between disclosure and inspection. Disclosure is when one party searches for all relevant documents and then lists these in a document. The party must then serve this document to the other party in the dispute.
On the other hand, inspection is where the other party reviews the documents disclosed. Not all disclosed documents are necessarily inspectable. For instance, you may have found several relevant documents protected by one of the various forms of privilege. As a result, disclosure rules require you to list such documents but may entitle you to withhold them so that the other party cannot inspect them.
What is Common Interest Privilege?
Common interest privilege protects certain documents or forms of communication from inspection. This is on the basis that you provided the documents to third parties during litigation under certain circumstances.
The following criteria can help you decide what documents or communication fall under common interest privilege:
- the documents must have formed some part of communication between you and a third party after the litigation commenced or when you knew it would commence;
- the sole or dominant purpose of the communication was to inform the other party about some aspect of the matter;
- you and the other party have a common interest; and
- you intended the communication to be confidential.
When is Common Interest Privilege Relevant?
Common interest privilege commonly arises under the following circumstances.
Co-Defendants/Co-Claimants
In litigation, it is common for there to be multiple claimants and defendants involved in the same claim. For instance, you might be one claimant among several suing a now insolvent customer. Alternatively, you may be one defendant among others involved in a complex negligence claim.
In such cases, there are obvious reasons why you would want to share information. Without common interest privilege, you would have to allow your counterparty in the dispute to inspect the communications, even where it would be unfair.
Subsidiaries and Parent Companies
The law generally treats each company as its own legal person. Therefore, the general rule is that sharing confidential information between two different companies may waive otherwise privileged information.
However, this is unfair for large businesses with multiple companies operating as a single corporate group. Common interest privilege allows these companies to share information without waiving privilege.
Insurers and Insureds
Insurance companies frequently take an active role in disputes involving their customers, the insured. This is because they often have the same goal: to dispute any claim made against the insured. Many insurance policies obligate the insured to provide relevant information about any claim to their insurer.
As a result, common interest privilege ensures that the insured can pass the information along without worrying that the other side might get to inspect it.
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What is the Difference Between Common Interest and Litigation Privilege?
Litigation privilege refers to communications made in the context of ongoing or pending litigation to obtain legal advice, evidence, or information between a:
- client and its lawyer;
- lawyer and a third party; and
- client and the third party.
Litigation privilege relates to communications directly arising from the conduct of litigation. This includes things like preparing statements of cases and court applications. As a result, third parties under litigation privilege are usually experts and witnesses drawn to assist with the case.
There are circumstances where common interest and litigation privilege might overlap. However, common interest privilege protects certain communications that may not fit the scope of litigation privilege.
Recent Developments in Disclosure
The disclosure landscape continues to evolve with technological advances and court procedures. Under Practice Direction 57AD (which replaced the Disclosure Pilot Scheme from October 2022), there is increased emphasis on using technology to manage disclosure efficiently.
Electronic disclosure now commonly involves advanced tools like predictive coding, AI-driven review and concept searching. The courts have endorsed these technologies, particularly in larger cases, while emphasising the need for transparency and proper supervision.
Recent cases highlight how:
- documents must be provided in native format, preserving metadata unless otherwise agreed;
- lawyers must properly supervise the disclosure process, including when using technology;
- independent experts may be appointed where parties lack necessary expertise;
- parties must cooperate on search methodologies and technology use;
- quality control measures are essential, particularly for OCR documents; and
- special attention needed for communication tools like WhatsApp and Teams.
These developments reflect the courts’ pragmatic approach to managing modern disclosure challenges while maintaining fundamental disclosure principles.
Key Takeaways
Common interest privilege protects certain documents or forms of communication from inspection. Specifically, if you provide the documents or communications to third parties during litigation under certain circumstances, you could prevent the other party in the dispute from reviewing the documents under privilege. Hence, this kind of privilege is relevant for disputes involving subsidiaries, parent companies, insurers, insureds, and co-defendants/co-claimants.
If you have any questions about the disclosure process, LegalVision’s experienced dispute lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 0808 196 8584 or visit our membership page.
Frequently Asked Questions
Disclosure is part of the litigation process, where you review relevant documents in your control and make them available to the other party.
The Civil Procedure Rules are a code of procedural rules that govern how court procedure works in England and Wales.
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