Several recent common law cases have involved disputes as to the proper ambit of litigation privilege. The parties in dispute may be commercial parties or private litigants or one or other against a regulator in adversarial proceedings (as opposed to, for example, solely inquisitorial investigations).
While the ambit of common law legal advice privilege appears to be settled (for now), with its controlling “dominant purpose” test and wide meaning of “legal advice”, it is (perhaps) no surprise that litigation privilege has come under more scrutiny.
Traditionally, legal advice privilege involves less players (namely, only legal representatives and their clients) and protects a range of confidential communications and documents that record the giving of instructions and the receipt of legal advice.
Litigation privilege, on the other hand, has traditionally involved a wider set of players; not just legal representatives and the parties that they represent. It protects confidential communications or documents passing between the parties or their legal representatives and third parties that are created for the sole or dominant purpose of obtaining information or advice in connection with actual or contemplated litigation (i.e., adversarial proceedings). It is not enough that litigation is in existence or contemplated – in order to satisfy the test, the communication or document must have been created for the sole or dominant purpose of conducting the actual or contemplated litigation.
In practice, the limitations of the protection afforded by litigation privilege often arise in the context of the preparation of documents by a party’s non-lawyer advisers (for example, accountants, auditors, investigators, etc). The preparation of such documents often requires careful consideration. A communication or document may have been created in connection with litigation but not necessarily for the sole or dominant purpose of conducting that litigation – for example, investigative reports or commercial documents proposing a certain course of action. Where it is intended that such communications or documents should be protected by litigation privilege, they must meet the criteria for litigation privilege.
Where there is doubt whether a communication or document will attract litigation privilege, it should be created under the instruction of a client’s legal representatives in order to attract legal advice privilege. A communication or document that attracts legal advice privilege, and which was created in a litigation setting, may also attract litigation privilege – the two privileges are different but can be related and they are not mutually exclusive.
Some non-lawyer advisers may advise with respect to certain legal issues (for example, tax laws). However, as a matter of common law, only advice given by a client’s legal representatives attracts legal advice privilege. This is not a professional competitive advantage – rather, it reflects the fundamental importance of legal professional privilege, which (in turn) is rooted in the administration of justice.
Indeed, it is difficult to see how any person or legal entity can properly exercise their substantive rights without proper legal representation and without the protection of both limbs of legal professional privilege (namely, litigation privilege and legal advice privilege). Further, they and their legal representatives are best placed to know the purpose for which a communication or document came into existence.
– David Smyth and
Senior Consultants, RPC