What is Legal Privilege in the UK?

If you are dealing with a dispute, you may come across the term ‘legal privilege’ in relation to evidence. Knowing what legal privilege means is important for understanding your position in a dispute. This article will give an overview of what legal privilege is and how to ensure that you do not lose your privilege. 

What is Privilege?

Put simply, ‘privilege’ gives a party the right to withhold evidence from the court and the other party to your dispute. The law of privilege refers to the law which governs when and how you can request privilege on evidence that may be used in court. The law of privilege applies to all types of evidence. 

In the UK, there are two types of privilege. They are:

• legal advice privilege; and
• litigation privilege.

Legal advice privilege applies regardless of whether court proceedings (i.e., litigation) have started. Further, it applies between you and your lawyer. Litigation privilege can only apply when litigation has started. The two types of privilege have different rules. 

Once you establish privilege, you will have the absolute right to withhold the privileged evidence from being used in court. Further, a court cannot make any inferences based on your establishment of privilege concerning some evidence. Finally, you can establish privilege in relation to evidence that may be relevant to the dispute. 

Legal Advice Privilege

The point of legal advice privilege is to give you full confidence in communicating with your lawyer. It applies to confidential communication between you and your lawyer, where the purpose of the communication is to give you legal advice. If a document is not confidential, for example, if it has been shared with third parties, then legal advice privilege cannot apply. 

This type of privilege always applies unless you choose to waive your right to legal advice privilege. Legal advice privilege can also apply to evidence that hints at what you may have been communicating with your lawyer.

Litigation Privilege

Litigation privilege applies when you are in litigating against a party. ‘Litigating’ simply refers to the process of taking your case to court. It means that you do not have to disclose the evidence that you find about the other party (pursuant to your litigation) to the other party. The purpose of litigation privilege is to let you be free to look for evidence to support your claim. 

For evidence to fall under litigation privilege, it must satisfy certain conditions. For example:

• the communication must mainly be for the purpose of litigation; 
• the material must be related to litigation that is happening or will happen soon; and
• in most cases, the material must also be confidential.

If you are looking to claim litigation privilege, you must prove that you have the right to litigation privilege. As such, you should seek legal advice before using litigation privilege, to ensure that you do not open yourself up for any potential liability. 

How to Make Sure You Do Not Lose Your Privilege

It is possible to waive or lose your right to privilege. This usually happens because of a loss of confidentiality. For example, suppose the relevant documents are circulated to a board of directors. In that case, it will cease to be confidential and thus lose protection by the law of privilege. 

However, you can avoid this by marking particular documents with ‘confidential and privileged’ and ‘not for onward circulation.’ Doing so will prevent those documents from losing their privileged status, even when shared with third parties. Similarly, making third parties sign confidentiality agreements is another way to ensure that your communications do not lose their privilege. 

On the whole, it is important that you are careful with sensitive information. Therefore, you should avoid informally communicating any information you want to be privileged in, such as an email. Additionally, you should sign all privileged information with ‘confidential and privileged’ notices. 

Key Takeaways

Legal privilege is an effective way of keeping your cards close to your chest during litigation. It means that certain communications cannot be relied on in court proceedings. This can be highly valuable for winning your dispute. You must know the rules around legal privilege to ensure that you do not unintentionally lose or waive your right. Primarily, you should make sure that you handle sensitive information carefully. One way of doing this is marking information that you want to be privileged as ‘confidential and privileged.’ 

If you need advice regarding legal privilege, LegalVision’s disputes 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.

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