Legal professional privilege: tips for practitioners

This article summarises the key practical tips delivered by the panellists at the Law Society’s Commercial Litigation Conference on 3 October 2024.

Legal professional privilege

The term ’legal professional privilege’ covers two forms of privilege:

1. ‘legal advice privilege’ and
2. ‘litigation privilege’

Legal professional privilege has been described as “a fundamental human right long established in the common law” (Ex P Morgan Grenfell & Co Ltd [2002] UKHL 21).

It has also been called a “fundamental condition on which the administration of justice as a whole rests” (R v Derby Magistrates Court, ex p. B [1995] UKHL 18)

The principle underpinning legal professional privilege is that a client should be able to obtain legal advice in confidence.

Without prejudice privilege (which is not the subject of this article) is a rule of admissibility rather than a form of privilege.

Legal advice 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 these communications.

Litigation privilege

Litigation privilege applies to confidential communications between a client and their lawyer, or either of them and a third party.

These communications must have been created for the sole or dominant purpose of adversarial litigation that is existing, pending or reasonably contemplated

In an adversarial system, litigation privilege is particularly important for providing and protecting “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” ([2024] EWCA Civ 28).

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.

This may prevent it from being privileged from the outset.

Hoi-Yee also notes that confidentiality is the bedrock of privilege, and a loss of confidentiality means a loss of privilege.

Even the following can lead to a loss of confidentiality:

• multiple addressees on email chains, and
• unfettered rights of access to privileged documents on a document management system

Similarly, says Stacie, it is important to be cautious of referring to privileged documents in legal proceedings.

Stacie and Hoi-Yee agree that simply mentioning legal advice in, for example, a statement of case or witness statement, it is unlikely to amount to a waiver of privilege.

However, if these references reveal the substance or the conclusion of the advice, privilege may be waived.

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.

This would mean 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.

In general, the courts have taken a generous approach to preservation of privilege.

However, Stacie cautions that it is a balancing exercise.

You should still be careful about sharing documents without some controls, given the risk of loss of privilege.

Stacie considers that sharing privileged material with a third party is best done when there are:

restrictions on further sharing, and

obligations to keep the material confidential

Stacie also points out that you can consult previous limited waiver examples provided by 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 decision in Three Rivers No. 5 (2004).

This established the 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, it is vital to think about and document who the client is.

This should reflect the reality that the ‘client’ is the body or group empowered to instruct the lawyers.

For example, the client could be either:

• an internal group who communicates with in-house lawyer(s), or
• a group, including in-house lawyers acting as the client, who are instructing external lawyers

Andrew advises you to think about the role of each individual or group, and the lines of communication, when documenting this.

It is also important to be careful about the size of this group. The larger the ‘client’, the more difficult it may be to justify.

Privilege in the context of investigations

Privilege is particularly hard 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
• the advice “relates to the rights, liabilities, obligations or remedies of the client either under private law or under public law” (following Three Rivers No. 6)

Andrew highlights that documents created as part of a purely investigative role, without any legal purpose, will not be privileged.

Litigation privilege may also apply if the dominant purpose of the investigation communications was:

• enabling legal advice to be sought or given, or
• for seeking or obtaining evidence or information to be used in connection with anticipated or contemplated proceedings (which will generally include regulatory proceedings)

Maximising privilege at the start of investigations

Andrew considers that best practice at the outset of an investigation should include identification of:

• who the client is, and
• documentation of the purpose of the investigation

This will help frame the legal context for any advice being delivered.

If relevant, you should document if adversarial proceedings are anticipated or already underway

It is also sensible to create a briefing to all investigation participants about privilege, explaining:

• what privilege is
• the different roles, and
• what the people in these roles need to do

Maximising privilege during investigations

Andrew suggests keeping internal briefings to oral form wherever possible and ensuring communications are kept to a need-to-know basis, including limiting the distribution list.

However, any notes of those briefings may still be disclosable.

You should give careful thought to the privilege status of internal reporting documents and how to manage the delivery of legal advice.

In other words, consider whether to weave this content into the body of a report to increase the likelihood of the entire document being privileged, or keep it entirely separate so that it can be cleanly redacted if the document is disclosed.

Andrew also comments that it is wise to keep communications purely factual when gathering information from third parties.

You should also limit any commentary on the material in case it is disclosed.

Limited waiver agreements

Following Stacie’s comments on sharing privileged information, Andrew notes that limited waiver agreements should be considered if privileged information needs to be shared.

Once privileged information is shared under a limited‑waiver arrangement, privilege no longer applies between the parties who share and receive that information.

However, the limited‑waiver agreement would still impose confidentiality obligations on those parties, and privilege would continue to apply against everyone else.