Do you have the privilege?
Every time you discuss a matter with your solicitor, it will be entirely confidential and solicitors are bound professionally.
If you are bringing legal proceedings, that confidentiality will be taking into consideration, and this is referred to as privilege. Its most common use will be at the disclosure stage of any proceedings (whereby parties must disclose and exchange their documents whether they are beneficial or detrimental to their case). You will argue that documents are privileged and therefore are not disclosable.
But what is privilege? Privilege is the protection that prevents other parties from knowing certain information, or that information being disclosed in court proceedings.
There are three types of privilege:
- Legal professional privilege
- Documents tending to incriminate a party (relating to criminal proceedings)
- On grounds of public policy
Legal professional privilege
Legal professional privilege is almost always the type of privilege in civil and commercial proceedings and is the area which this article will discuss. It is attracted in certain scenarios and will involve correspondence between particular parties throughout litigation.
Advice privilege will entail communications passing between a party and their legal advisors or between the legal advisors themselves, such as between solicitors and barristers. Therefore, any communications between you and your solicitor/barrister will be protected under legal professional privilege, specifically advice privilege. There are some limitations to this type of privilege so it is always best to check with your solicitor, if privilege is attracted.
Secondary to advice privilege, is litigation privilege and this will arise when there are communications between the solicitor and a third party or between you, as a party to the proceedings and the third party. There are strict caveats to this type of privilege and this correspondence will be privileged only if the document came into existence after litigation is contemplated or commenced and they are created either for the sole or dominant purpose of having advice or obtaining evidence to be used in it. For clients and third parties, documents passing between them will be privileged if they were produced for the sole or dominant purpose to obtain legal advice for the contemplated or commenced litigation, or to obtain or assist in obtaining to have as evidence.
As to when litigation is contemplated, the litigation must be a reasonable prospect at the time the document was created solely for legal advice on such document or to use it as evidence.
Deciphering if a document is privileged or not will ultimately be down to what the purpose of the document was. Before pleading privilege, you should always take legal advice to prevent you from falling foul of the rules or inadvertently disclosing something which could have been privileged.
In order to claim that a document is privileged, it must be confidential. If the information is available to the public, such as on social media, it will not be privileged.
Privilege belongs to you, the party, and not to your solicitor. It is therefore your decision to waiver privilege or not. You can waiver privilege similarly to authorising your solicitor to waiver your confidentiality. In some instances, you may need to waiver privilege and your solicitor will advise you if this is the case. A prime example is disclosing an expert report, and this will be why your solicitor will ask you to sign a form of authority granting your permission to disclose the document (there are separate instances about the instruction letters to the expert).
If you do waiver privilege, that privilege then ceases; you will be unable to argue that a document/correspondence is privileged because you have permitted it to be disclosed.
The rules on privilege and disclosure are complex. It is always advisable that you speak with a solicitor about these areas to prevent you from acting in such a way that could hinder your case.
Katarina is a solicitor in the Dispute Resolution department at Lennons. She undertakes all areas of dispute resolution and has a specialism in commercial disputes and negligence claims. She advises and acts for individuals and body corporates on an array of litigation matters including breach of contract, debt and insolvency, professional and clinical negligence, personal injury and property.
For assistance on litigation and dispute resolution issues, please contact our Dispute Resolution department on 01494 773377 or email us at [email protected].
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