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 disclosure to the court and the other party to your dispute. The law of privilege refers to the law that governs when and how you can request privilege on evidence that may otherwise be subject to disclosure and subsequently used in court. The law of privilege applies to all types of evidence. 

However, privilege provides an exception to this rule of disclosure. 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 only applies when litigation has commenced. 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. 

It is crucial to note that while privilege exempts you from disclosing certain documents, it does not remove your obligation to list these documents in your disclosure statement. You must still identify the existence of privileged documents, even though you’re not required to produce their contents.

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. 

However, legal advice privilege will not apply where the communication is for the purpose of furthering criminal or fraudulent activity.

Litigation Privilege

Litigation privilege applies when you are 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.

When considering whether litigation privilege applies, it is important to understand the ‘dominant purpose’ test. This test has been interpreted broadly in recent years. Now, documents are protected by litigation privilege if their dominant purpose is to avoid, settle or defend litigation. This means that materials created during internal investigations or settlement negotiations may be covered, as long as litigation was reasonably in contemplation at the time. However, the exact application can be complex, so careful consideration is necessary.

Notably, litigation privilege does not require a lawyer to be present within the communication. Therefore, it can apply to documents and relevant communications shared with non-legal advisers, such as accountants. 

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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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