At the Law Society’s Commercial Litigation Conference on 3 October 2024, Hoi-Yee Roper, Stacie Bourton, Andrew Waters and Katherine Harper discussed some of the latest developments in legal professional privilege and practical tips. This article summarises the key practical tips delivered by the panellists
Legal professional privilege
The term ’legal professional privilege’ covers two forms of privilege: ’legal advice privilege’ and ’litigation privilege’.
Legal advice privilege applies to confidential communications between a client and their lawyer created for the sole or dominant purpose of giving or receiving legal advice. It also applies to documents which would reveal the contents of such communications.
Litigation privilege applies to confidential communications between a client and their lawyer – or either of them and a third party – created for the sole or dominant purpose of adversarial litigation which is existing, pending or reasonably contemplated.
Legal professional privilege has been described as a “a fundamental human right long established in the common law” and a “fundamental condition on which the administration of justice as a whole rests”. The principle underpinning legal professional privilege is that a client should be able to obtain legal advice in confidence. Further, insofar as litigation privilege is concerned, there is an additional rationale that in an adversarial system, there must be the existence and protection of “a confidential space for a person and their lawyers to communicate with third parties, with candour on both sides, for the dominant purpose of litigation”.
By contrast and for completeness, without prejudice privilege (which is not the subject of this article) is a rule of admissibility.
Potential privilege pitfalls
Hoi-Yee points out that mixing legal advice with business or other advice can prevent the communication from meeting the dominant purpose requirement and so may not be privileged from the outset.
Confidentiality is also the bedrock of privilege, notes Hoi-Yee, and a loss of confidentiality means a loss of privilege. Things to be mindful of include multiple addressees on email chains and unfettered rights of access to privileged documents on a document management system, as these can lead to a loss of confidentiality.
Similarly, says Stacie, it is important to be cautious in legal proceedings of referring to privileged documents. Stacie and Hoi-Yee agree that while the mere mention of legal advice in, for example, a statement of case or witness statement is unlikely to amount to a waiver of privilege, references which reveal the substance or the conclusion of the advice may well be. If there has been a waiver of privilege due to a reference to a particular piece of advice or document, it may lead to further privileged documents being ordered to be disclosed. The court may do so on the basis that deployment of certain ’cherry picked’ privileged documents is unfair and so any right to assert privilege over documents concerning the same subject matter has been lost.
Sharing privileged information
A common challenge in practice is how to share privileged information with a third party without risking the loss of privilege.
Stacie observes that the concept of a limited waiver is well established and accepted by the courts. Further, the courts have generally taken a generous approach to preservation of privilege. That said, Stacie cautions that it is a balancing exercise and it is important to be careful about sharing documents without some controls given the risk of loss of privilege.
As to this, Stacie considers that sharing of privileged material with a third party is best done on terms which include restrictions on further sharing and obligations to keep the material confidential. Stacie highlights that precedent limited waiver agreements are available to be consulted from, for example, Practical Law.
Who is the client and why does it matter?
A key question for legal advice privilege is “who is the client?”. Andrew highlights the significant Three Rivers No. 5 (2004) decision which established the (still controversial) principle that the ’client’ must be the specific group of individuals within an organisation who are expressly tasked with seeking and receiving legal advice. Communication of legal advice beyond ’the client’ risks the legal advice not being protected.
As a result, says Andrew, at the outset of matter it is vital to think about and document who the client is for privilege purposes and this should reflect the reality that the ’client’ is the body/group empowered to instruct the lawyers. The client could be an internal group who communicate with in house lawyer(s), or could be a group consisting of or including in house lawyers (acting as the client) who are instructing external lawyers. When documenting this, advises Andrew, think about the role of each individual / group and lines of communication. It is also important to be careful about the size of this group as the larger the ’client’, the more difficult it may be to justify.
Privilege in the context of investigations
Privilege is particularly tricky to navigate in the context of investigations. Andrew notes that legal advice privilege will apply to appropriate documents generated in investigations led by in house or external lawyers, provided that the relevant advice was given in their professional capacity as lawyers and “relates to the rights, liabilities, obligations or remedies of the client either under private law or under public law” (followingThree Rivers No. 6). Andrew highlights that documents created as part of a purely investigative role, without any legal purpose, will not be privileged.
In addition, litigation privilege may also apply provided that the dominant purpose of the investigation communications was for enabling legal advice to be sought or given and/or for seeking or obtaining evidence or information to be used in connection with anticipated or contemplated proceedings (which will generally include regulatory proceedings).
To try to maximise privilege, Andrew considers that best practice at the outset of an investigation should, at the very least, include identification of who the client is and documentation of the purpose of the investigation to help frame the legal context for any advice being delivered. If relevant, it should be documented if adversarial proceedings are on foot or contemplated. It is also sensible to create a briefing to all investigation participants about privilege, explaining what privilege is, the different roles and what they need to do.
During the investigation, Andrew suggests that it is prudent to keep internal briefings oral wherever possible and keep all communications on a need to know basis (including limiting the distribution list) albeit that notes of the same may still be disclosable. Careful thought should also be given to the privilege status of internal reporting documents and how to manage the delivery of legal advice (in other words, whether to weave it into the body of a report to maximise the prospects of the entire document being privileged, or whether to keep it entirely separate so that it can be cleanly redacted if the document is to be disclosed).
Andrew also comments that it is wise to keep communications purely factual where information needs to be gathered from third parties (for example, to be sent on to external lawyers) in case of disclosure and also to limit any comment on the material.
Following Stacie’s comments on sharing of privileged information, Andrew notes that limited waiver agreements should be considered if privileged information needs to be shared and privilege would be unlikely to apply to that sharing.
