Are confidential documents ever really confidential once litigation commences?

Disclosure in civil proceedings usually involves the identification and making available of both hard copy and electronic documents that are relevant to the issues in the proceedings. It is recognised by the Courts as playing an integral part in the fair resolution of civil disputes.

The necessity to disclose documents extends to documents that a party might have considered “confidential” and includes both documents that assist the party disclosing them and, if the claim falls within the remit of the Business and Property Court, more significantly those that do not (“adverse documents”).

However, there will be occasions when a party is only required to identify the documents but not make them available. This is where “Legal Professional Privilege” (LPP) applies. The burden of proving that LPP applies falls on the party claiming it, and for this reason legal advisers must consider very carefully whether or not it should be claimed. Where it is felt that it does apply, LPP can encompass two sub-heads - Litigation Privilege and Legal Advice Privilege - and it has long been accepted that the two sub-heads have different, although not necessarily mutually exclusive, characteristics.

The requirements for Litigation Privilege were succinctly set out by Lord Carswell sitting in the House of Lords (now the Supreme Court) in 2004 as follows:-

“communications between parties or their solicitors and third parties for the purpose of obtaining information or advice in connection with existing or contemplated litigation are privileged, but only when the following conditions are satisfied:

a) Litigation must be in progress or in contemplation;
b) The communications must have been made for the sole or dominant purpose of conducting the litigation;
c) The litigation must be adversarial, not investigative or inquisitorial”.

Although originally confined to Litigation Privilege, LPP was extended to non-litigious business to enable legal advice to be sought and given in confidence. The primary test for Legal Advise Privilege is “whether the communication or other document was made confidentially for the purposes of legal advice”. It has been clarified that this should be the dominant purpose and not just an ancillary purpose, for example where commercial views were being sought from the primary recipients with the lawyer only reading in copy. Legal advice is not confined to telling the client the law but may include advice about what “should prudently and sensibly be done in the relevant legal context”.

The exact parameters for the application of LPP are still evolving, however the Courts, Law Society and Information Commissioner’s Office have all provided some useful guidance over the years on certain questions that may arise:-

Does Legal Advice Privilege extend to advice provided by all experts / professionals in relation to a matter?

No, it only applies to advice between lawyers or barristers and their client. If advice is going to be obtained from another expert, consideration should be given to instructing a legal professional to obtain that advice on your behalf.

Does Legal Advice Privilege apply to advice from foreign lawyers?

Yes, so long as they are acting in the capacity or function of a lawyer.

Does Litigation Privilege cover the identity of a person communicating with a lawyer?

Not automatically, once it is established that the communication itself is covered consideration needs to be given as to “whether that privilege will be undermined by the disclosure of identity sought”. To put it another way, the question to be answered is whether disclosure of the identity of the person involved might reveal something about the content of the communication or the relevant litigation strategy. If it would, then Litigation Privilege should be claimed with as much detail as possible to explain why, but only in general enough terms so as not to disclose the privileged information.

Can a party require disclosure of information using the Freedom of Information Act 2000?

Section 42 of the Act provides that where information is the subject of LPP, it is exempt information for the purposes of the Act?. However, this is subject to consideration as to whether the LPP has been lost following previous disclosures to the world at large which mean that the information can no longer be said to be confidential, and the public interest test. The public interest test requires consideration of whether the public interest in maintaining the exemption outweighs the public interest in disclosure, with the starting point being the importance of the principle behind LPP “safeguarding openness in all communications between client and lawyer to ensure access to full and frank legal advice, which in turn is fundamental to the administration of justice”.

Does referring to the existence of legal advice in court documents waive the right to claim LPP?

Not necessarily, the purpose and extent of the reference will need to be considered. It had previously been thought that LPP would only be waived by reference to the contents of the advice given but not if the reference was only to its effect. Practitioners have now been warned against applying this “mechanistically”, with the key questions the court will consider being identified as:-

• Whether there is any reliance on the privileged material;
• What the purpose of that reliance is; and
• The particular context of the case in question.

It has further been clarified that stating that a particular issue has not been discussed, did not amount to a voluntary disclosure of privileged material and no waiver could therefore be said to have occurred. However, where a waiver is found to exist, this can extend to other privileged material relating to the same issue or transaction not referred to.

Clearly the courts are still refining their approach to disclosure and so it is important to obtain up to date legal advice early whenever disclosure might be, or might become, relevant and the Dispute Resolution team at Rollits are here to assist.

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