What is privilege?

If you are able to hold privilege over a document, you may withhold it from being shown to another party, including the courts and tribunals. The communication must remain confidential, or privilege is lost. “Document” has a very wide meaning and includes hard copy (notes, correspondence, memos, agreements, forms, calendars, financial statements etc) and electronic documents (computer files, e-mails, CD-ROMS, tape recordings, texts, voicemails etc).

Quick overview of the main types of privilege

  • Legal advice privilege covers confidential communications passing between a client and his lawyer for the purpose of giving or receiving legal advice.
  • Litigation privilege covers confidential communications with a lawyer or third party for the dominant purpose of litigation.
  • Without prejudice privilege covers communications which are made in a genuine attempt to settle a dispute.

Practical steps

Do

  • Instruct colleagues or employees to mark all communications in relation to obtaining legal advice as “privileged and confidential”.
  • Circulate privileged documents only on a need to know and confidential basis.
  • Review emails before forwarding them on.
  • Keep business and practical advice/communications (which are not privileged) separate from legal advice.
  • Avoid the temptation to respond to a crisis by telling lots of people about it in unnecessary and unhelpful detail.
  • With contentious matters, consider organising a specific team to communicate with the lawyers.
  • Assume that any document created may be seen by a judge so think about your language as how you put things may be read out of context.
  • Remember that there is no “private”, “personal”, “confidential”, “secret” or “off the record” communication. For disclosure in litigation, all communications which are relevant and not privileged must be disclosed.
  • Adhere to all document retention policies.
  • Contact RPC if in doubt.

Do not

  • Assume that marking a document “privileged” makes it so.
  • Assume that just copying in a lawyer to communications means that privilege arises.
  • Make any suggestions that privilege has been waived whether expressly or impliedly.
  • Refer to without prejudice communications in unprivileged documents.
  • Create unnecessary documents (eg emails, briefings, handwritten notes, presentations) in a hasty reaction to contentious or sensitive issues without legal supervision.
  • Mark documents with any inappropriate comments. Remember that the obligation to disclose extends to copies of originals with comments or annotations on them.
  • Destroy relevant documents if there is a prospect of legal proceedings.