The creation and maintenance of privilege continues to require thought to be given to the process of creating documents and the reasons for their creation. This article considers these issues as they arise in relation to the species of privilege that exists in relation to legal proceedings.

Introduction

The concept of litigation privilege exists to protect parties to litigation. It ensures that a party is able to assess the merits and prepare its case without having to concern itself with the disclosure of those details to its opponent. Despite this apparent protection, however, the complexities involved can make the rules surrounding litigation privilege a difficult area to navigate. The aim of this article is to disentangle those rules, resolve any myths and provide a step-by-step guide to the key points you need to know about litigation privilege.

Litigation privilege is distinct from legal advice privilege. Litigation privilege subsists in documents, including communications, which are confidential and which have been produced in circumstances where litigation is either in progress or where there is a reasonable prospect that it will happen, provided that the litigation is the dominant purpose for which the document was created.

Litigation privilege versus legal advice privilege

Contrary to common misconception, litigation privilege and legal advice privilege are not the same thing. Legal advice privilege covers communications between a solicitor and their client which relate to the giving or receiving of legal advice. Litigation privilege, conversely, can exist outside of the client-solicitor relationship in relation to any documents or communications which have been produced for the dominant purpose of obtaining advice in relation to litigation, obtaining or collecting evidence for the litigation, or obtaining information which may assist in obtaining or collecting such evidence.

Confidentiality

Neither litigation privilege nor legal advice privilege can be claimed in relation to a document or communication unless that document or communication is confidential. That said, confidentiality alone will not confer any privilege: to claim litigation privilege, litigation must be in progress or there must be a reasonable prospect that it will happen (see section 3 below). A document or communication will cease to be confidential if it is put into the public domain. It follows that privilege will generally be lost if a document is read out in open court, or is communicated between opposing parties. You should also avoid broad, general or extensive internal circulation of any document that you think you are likely to claim privilege over.

Litigation must be in progress or there must be a reasonable prospect that it will happen

Litigation must either have been in progress, or there must have been a reasonable prospect of litigation, when the document was created. This may not be as simple as it initially sounds, however. It is not always clear as to when litigation is in "reasonable prospect", and it continues to be the subject of much legal debate. However it is generally accepted that "reasonable prospect" means more than a mere possibility, but not necessarily greater than 50%, and is usually satisfied if litigation is "reasonably likely" or even "may happen".

The dominant purpose must be litigation

The dominant purpose at the time of creation of a document or communication of its author, or of the person or authority under whose direction it was produced or brought into existence, must be to use it or its contents in order to obtain legal advice, or to conduct or aid in the conduct of litigation. It will not be enough that a document happens to be relevant to later litigation if it is clear that, at the time of production, the document was commissioned for another reason, for example, a proposed business deal or a reflection of annual accounts.

When litigation privilege does not apply

Instructions to and reports produced by expert advisers, to confidentially advise on the merits of the case, are protected by litigation privilege.

The instructions to expert witnesses for the purpose of litigation, on the other hand, are not protected by privilege if they are to be used in court, as this makes them a public document, and therefore they do not satisfy the confidential aspect of litigation privilege.

Where the expert witness report is intended to be public, the substance of the instructions on the basis of which the report was written must also be stated within the report. However, the court will not generally order disclosure of any specific document surrounding the instructions or permit any questioning in court of them, unless the substance of the instructions are believed to be either inaccurate or incomplete. It is therefore very important to recognise that any emails with the solicitor, or even with a third party, discussing the instructions to an expert witness or their report may lose their protection. It is advisable to be cautious with these communications in case they later end up in court as evidence against you.

It is important to always keep in mind that there are many other types of documents or correspondence that may not necessarily be privileged. For example, any internal correspondence may not necessarily be privileged, even if it is highly confidential and potentially damaging to your case. Other documents include correspondence with and reports created for insurers, inter-company memos and reports prepared for internal purposes, for example reports on accidents for internal health and safety purposes. Board minutes discussing actions to be taken in light of legal advice received in relation to the litigation, but which does not reveal the advice itself, will not be privileged either. One further point to note is that any marked or modified copies of documents are treated as separate documents by the court, and as such particular care should be exercised with copies.

Ongoing nature of litigation privilege continues

It is important to note that litigation privilege subsists, even if the claim for which purpose the document was produced is not pursued or if the threat of litigation has passed. This means that a document remains privileged in subsequent litigation, even if the subsequent litigation is on a different matter, unrelated to the initial hypothetical litigation.

It is therefore vital that you do not treat these documents differently after the threat of litigation has subsided. Such documents may be important in the future, and so they should be stored in a confidential and secure place.

Practical tips to maximise the protection of litigation privilege

  • Keep documents confidential - Once documents are in the public domain they will lose their entitlement to litigation privilege.
  • Make clear at the commissioning stage of a document that it is for the purpose of litigation.
  • It may be prudent to make it clear on the face of any document or communication that it is confidential and has been created for litigation, though this will not in itself ensure privilege will attach.
  • Be careful when discussing expert witnesses and reports or any document, correspondence or advice received in relation to the litigation. Consider whether it is essential that any document is circulated internally.
  • At no stage provide documentation to the other side without the guidance of your in-house lawyer or external solicitor.
  • Once a document is protected by litigation privilege it will always be protected. Do not put a document into the public domain just because the dispute has subsided. It may need to be protected in future litigation.
  • When circulating documents internally, carefully consider who you are sending it to, why you are sending it and whether the recipient really needs to see it. You should avoid sending emails containing potentially privileged on mass.