Evidence and disclosure - Privilege and without prejudice communications

Learning Outcomes

After studying this article, you should be able to explain the principles governing legal professional privilege (both legal advice privilege and litigation privilege) and the without prejudice rule in the context of civil litigation. You will understand the requirements for each doctrine to apply, recognise common exceptions, and appreciate their practical significance in relation to disclosure and inspection of documents. This knowledge will enable you to apply these principles to SQE1-style single best answer questions concerning evidence and disclosure.

SQE1 Syllabus

For SQE1, you are required to understand the rules of evidence and disclosure relevant to civil litigation, specifically focusing on privilege and without prejudice communications. Your understanding will be tested on your ability to identify when these doctrines apply and their effect on the disclosure and inspection process.

As you work through this article, remember to pay particular attention in your revision to:

• The distinction between legal advice privilege and litigation privilege.
• The requirements for establishing each type of legal professional privilege.
• The purpose and scope of the without prejudice rule.
• Common exceptions to privilege and the without prejudice rule.
• How privilege affects obligations during the disclosure process (eg listing documents).
• The concept of waiver of privilege.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which type of legal professional privilege protects confidential communications made between a client and their lawyer for the dominant purpose of conducting ongoing or reasonably contemplated litigation?
   1. Legal advice privilege
   2. Litigation privilege
   3. Common interest privilege
   4. Without prejudice privilege

2. True or false? A document marked 'Without Prejudice' is automatically protected from disclosure in court proceedings.

3. Which of the following is NOT a requirement for legal advice privilege to apply?
   1. The communication must be confidential.
   2. The communication must be between a lawyer and their client.
   3. Litigation must be reasonably in prospect.
   4. The communication must be for the dominant purpose of giving or receiving legal advice.

Introduction

In civil litigation, the process of disclosure requires parties to reveal the existence of relevant documents to their opponents. However, not all disclosed documents are available for inspection. Certain categories of documents are protected from inspection by the rules of privilege. Two key protections are legal professional privilege and the without prejudice rule. Understanding when these protections apply is essential for managing evidence and advising clients effectively during litigation. Failure to correctly identify and maintain privilege can have significant adverse consequences.

Legal Professional Privilege (LPP)

Legal professional privilege (LPP) is a fundamental right ensuring that a client can consult with their lawyer in confidence, without fear that these communications will be revealed to an opponent or the court. It encourages open and honest communication, which is essential for effective legal representation. LPP encompasses two distinct types: legal advice privilege and litigation privilege.

Legal Advice Privilege (LAP)

LAP protects confidential communications between a lawyer and their client made for the dominant purpose of giving or receiving legal advice.

Key Term: Legal Advice Privilege
A type of legal professional privilege protecting confidential communications between a lawyer and client made for the dominant purpose of giving or receiving legal advice.

Key elements for LAP:

• Confidential communication: The communication must have been made in circumstances where confidentiality was expected and maintained.
• Lawyer-client relationship: The communication must be between a client (or someone authorised by the client) and a lawyer acting in their professional capacity. The definition of 'client' can be narrow within large organisations.
• Dominant purpose: The primary purpose of the communication must be to give or receive legal advice. This includes advice on what should prudently and sensibly be done in the relevant legal context. It does not cover purely commercial or operational advice, even if provided by a lawyer.

Worked Example 1.1

A company director emails the company's in-house lawyer asking for advice on the potential legal risks associated with launching a new product. Is this email likely protected by LAP?

Answer: Yes, likely. The email is a confidential communication between a client (the company, represented by the director) and its lawyer for the dominant purpose of seeking legal advice regarding potential legal risks.

Litigation Privilege (LP)

LP protects confidential communications made for the dominant purpose of conducting litigation which is reasonably in prospect. It has a broader scope than LAP as it can cover communications with third parties, not just the client.

Key Term: Litigation Privilege
A type of legal professional privilege protecting confidential communications made after litigation is contemplated or commenced, where the dominant purpose is to conduct that litigation. This can include communications with third parties, such as potential witnesses or experts.

Key elements for LP:

• Litigation must be a real likelihood: There must be more than a mere possibility of litigation; it must be reasonably in prospect.
• Dominant purpose: The communication (whether with the client or a third party, like an expert or witness) must have been created for the dominant purpose of conducting that litigation. This includes obtaining information or advice in connection with the litigation or gathering evidence for it.
• Confidential communication: The communication must be confidential.

Worked Example 1.2

Following a factory accident, a company instructs its solicitor. The solicitor commissions an expert report specifically to assess the merits of a potential personal injury claim by an employee, which the company believes is highly likely. Is the expert's report protected by LP?

Answer: Yes. Litigation (the personal injury claim) is reasonably in prospect. The expert report was commissioned by the solicitor for the dominant purpose of conducting that anticipated litigation (assessing its merits, gathering evidence). The report is a confidential communication involving a third party (the expert).

Exam Warning

Be careful to distinguish between LAP and LP. LAP protects the seeking/giving of legal advice generally, while LP applies only when litigation is contemplated or commenced and protects communications made for the conduct of that litigation, potentially involving third parties. A key test is the 'dominant purpose' for which the communication was created.

Without Prejudice (WP) Communications

The without prejudice rule protects communications made in a genuine attempt to settle a dispute from being put before the court as evidence of admissions against the interest of the party who made them. Its purpose is to encourage parties to negotiate freely and settle disputes without fear that their settlement proposals will prejudice their case if negotiations fail and the matter proceeds to trial.

Key Term: Without Prejudice Rule
A rule of evidence that prevents statements made in a genuine attempt to settle an existing dispute from being put before the court as evidence of admissions against the interest of the party that made them.

Key elements for the WP rule:

• Existing dispute: There must be a dispute between the parties at the time the communication is made.
• Genuine attempt to settle: The communication must be a genuine attempt to negotiate a settlement. A letter simply stating a party's case, even if marked 'Without Prejudice', may not be protected if it is not part of a negotiation.
• Communication relating to the dispute: The communication must relate to the issues in dispute.

Communications can be expressly marked "Without Prejudice" or "WP", but this is not conclusive. The court will look at the substance of the communication to determine if it was made in a genuine attempt to settle. Conversely, a communication not marked "WP" may still attract protection if it meets the criteria.

Worked Example 1.3

During settlement negotiations for a breach of contract claim, the defendant sends the claimant a letter marked 'Without Prejudice' offering to pay £10,000, stating "this is purely a commercial offer to avoid further costs and is not an admission of liability, which we continue to deny". Negotiations fail. Can the claimant use this letter at trial to show the defendant implicitly admitted some liability?

Answer: No. The letter was marked 'Without Prejudice' and was clearly made as a genuine attempt to settle the dispute while expressly denying liability. The WP rule protects it from being used as evidence of an admission at trial.

Exceptions to the Without Prejudice Rule

There are limited exceptions where WP communications may be admissible, for example:

• To prove whether a settlement agreement was concluded.
• Where the communication forms part of an act of misrepresentation, fraud, or undue influence.
• Where a statement gives rise to an estoppel.
• To explain delay in progressing proceedings.
• Where it is necessary to interpret a concluded settlement agreement.

Revision Tip

Remember that privilege (LPP) and the without prejudice rule serve different functions. LPP protects the confidentiality of lawyer-client communications or litigation materials. The WP rule protects settlement negotiations from being used as admissions. Both affect whether a document, although disclosable, can be inspected or used in court.

Waiver of Privilege and the WP Rule

Privilege belongs to the client, not the lawyer, and can be waived by the client. Waiver can be express or implied. Implied waiver occurs if a party deploys part of a privileged document in court or refers to its contents; this may lead to the whole document, or related documents, losing privilege (the 'cherry-picking' rule).

Key Term: Waiver
The intentional or unintentional abandonment of a right, such as legal professional privilege or the without prejudice protection. Once waived, the protection is lost.

The without prejudice protection is joint between the parties. It can only be waived with the consent of both parties involved in the negotiation. One party cannot unilaterally decide to put WP communications before the court unless an exception applies.

Practical Considerations

• Disclosure Lists: Privileged documents must still be listed in Part 2 of the List of Documents (Form N265) during standard disclosure, but inspection can be withheld. The description should be sufficient to identify the document category without revealing its content (e.g., "Correspondence between client and solicitor for the purpose of obtaining legal advice"). WP documents are usually not listed unless relevant to an issue where an exception applies.
• Inadvertent Disclosure: If a privileged document is accidentally disclosed to the opponent (e.g., emailed by mistake), the party receiving it is generally under a duty to stop reading it and inform the disclosing party if the mistake is obvious. The court may grant an injunction to prevent the use of inadvertently disclosed privileged material.
• Crime-Fraud Exception: LPP does not apply to communications made in furtherance of a crime or fraud. If a client seeks legal advice to help commit a fraud, the communication is not privileged.

Summary

Table 1.1: Comparison of LPP and WP Rule

Key Point Checklist

This article has covered the following key knowledge points:

• Legal Professional Privilege (LPP) protects confidential communications between lawyers and clients (LAP) or communications made for the dominant purpose of conducting litigation (LP).
• Legal Advice Privilege (LAP) requires confidential communication between lawyer and client for the dominant purpose of giving/receiving legal advice.
• Litigation Privilege (LP) requires confidential communication made when litigation is reasonably in prospect, for the dominant purpose of conducting that litigation (can include third parties).
• The Without Prejudice (WP) rule protects communications made in a genuine attempt to settle a dispute from being used as evidence of admissions.
• Privilege belongs to the client and can be waived. WP protection is joint and requires consent from both parties to waive, unless an exception applies.
• Privileged documents are disclosed in Part 2 of the disclosure list, but inspection is withheld.
• Exceptions exist for both LPP (crime-fraud) and the WP rule (proving settlement, misrepresentation).

Key Terms and Concepts

• Legal Advice Privilege
• Litigation Privilege
• Without Prejudice Rule
• Waiver