Learning Outcomes
This article explains the concept of legal professional privilege and the circumstances in which it may be lost or waived. It details the different types of privilege, the mechanisms by which waiver can occur (expressly, impliedly, or inadvertently), and the key principles applied by the courts when resolving disputes concerning privilege. Understanding these principles is important for advising clients on disclosure obligations and managing sensitive information during litigation, forming a key part of the functioning legal knowledge required for SQE1.
SQE1 Syllabus
For SQE1, you are required to understand the practical implications of waiving legal professional privilege during the disclosure process in civil litigation. This includes recognising the types of privilege, how waiver occurs, and the consequences for the parties involved. Your knowledge should enable you to advise clients effectively and manage disclosure obligations correctly.
As you work through this article, focus your revision on:
- The distinction between legal advice privilege and litigation privilege.
- The different ways privilege can be waived: express, implied, and inadvertent waiver.
- The consequences of waiving privilege, including the potential scope of the waiver.
- The court's approach to disputes involving alleged waiver, particularly inadvertent disclosure.
- Relevant Civil Procedure Rules (CPR) concerning privilege and disclosure.
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.
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Which of the following best describes the 'dominant purpose' test in relation to privilege?
- It applies only to legal advice privilege.
- It determines if a communication's main purpose was for obtaining legal advice.
- It applies only to litigation privilege.
- It determines if a communication's main purpose was for conducting litigation.
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A solicitor sends an email containing privileged advice to their client but accidentally copies in the opposing solicitor. What type of waiver might this represent?
- Express waiver
- Implied waiver
- Inadvertent waiver
- No waiver has occurred.
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True or False: Once legal professional privilege is waived over part of a document, privilege is automatically waived over the entire document and related materials on the same subject.
Introduction
Legal professional privilege (LPP) is a fundamental right allowing parties to communicate confidentially with their lawyers without fear of those communications being disclosed to an opponent or the court. However, this protection is not absolute and can be lost through waiver. Waiver occurs when the party entitled to the privilege (the client) acts in a way that is inconsistent with maintaining the confidentiality the privilege is designed to protect. Understanding how privilege can be waived, intentionally or unintentionally, is critical for practitioners managing litigation and advising clients on disclosure.
Key Term: Legal Professional Privilege (LPP)
A fundamental right protecting certain confidential communications between a lawyer and client (legal advice privilege) or communications made for the dominant purpose of conducting litigation (litigation privilege) from compulsory disclosure.
Types of Legal Professional Privilege
Before considering waiver, it is necessary to briefly distinguish the two main types of LPP.
Legal Advice Privilege
This protects confidential communications made between a client and their lawyer for the dominant purpose of giving or receiving legal advice. It applies whether or not litigation is contemplated or pending. The definition of 'client' can be narrow, especially in a corporate context, potentially excluding communications with employees not tasked with seeking legal advice (Three Rivers District Council v Governor and Company of the Bank of England (No 5) [2003] EWCA Civ 474).
Litigation Privilege
This protects confidential communications made after litigation has commenced or is reasonably in prospect. The communication's dominant purpose must be to conduct that litigation. This includes communications between the lawyer and client, the lawyer and a third party (e.g., an expert witness), or the client and a third party, provided the dominant purpose condition is met (Serious Fraud Office v Eurasian Natural Resources Corporation Ltd [2018] EWCA Civ 2006).
Key Term: Dominant Purpose Test
A test applied primarily to litigation privilege (and increasingly considered for legal advice privilege) to determine if the main reason for creating a communication was for conducting litigation or obtaining legal advice. If the purpose was mixed, the litigation/advice purpose must be the dominant one for privilege to apply.
Mechanisms of Waiver
Privilege belongs to the client and can only be waived by the client, or by their lawyer acting with authority. Waiver can occur in several ways.
Express Waiver
This is a deliberate and intentional disclosure of privileged material to a third party or the opposing party. For example, a client might choose to reveal part of their lawyer's advice to support their case or during settlement negotiations.
Once privilege is expressly waived over a communication, it is generally waived permanently. Importantly, waiving privilege over part of a communication may result in waiver over a larger class of related documents concerning the same issue or transaction, if fairness requires it to avoid a partial or misleading picture (Great Atlantic Insurance Co v Home Insurance Co [1981] 1 WLR 529). This is often referred to as 'collateral waiver' or the 'cherry-picking' rule.
Implied Waiver
Implied waiver occurs when a party acts inconsistently with the maintenance of confidentiality, even without intending to waive privilege. The most common scenario is where a party refers to the content or effect of privileged communication in their statement of case, witness statement, or submissions to the court.
Key Term: Waiver
The intentional or unintentional loss of the right to claim legal professional privilege, usually by disclosing the privileged communication or acting inconsistently with the confidentiality it protects.
If a party pleads, for example, "I acted as I did because my solicitor advised me to...", they put the content of that advice in issue. Fairness dictates that the opposing party should be able to see the advice to test the assertion. The court will consider whether the reference merely mentions the existence of advice or actually relies on its content. Only reliance on the content typically leads to an implied waiver.
Inadvertent Waiver
This occurs when privileged material is accidentally disclosed to an opponent, often during the disclosure process (e.g., mistakenly including a privileged email in a disclosure list or bundle).
The CPR provide specific guidance (CPR 31.20). If a party inadvertently allows a privileged document to be inspected, the party who has inspected it may use it or its contents only with the permission of the court. The court will usually grant permission unless the inspecting party knew or should reasonably have known that the disclosure was a mistake (Al Fayed & Others v Commissioner of Police of the Metropolis & Others [2002] EWCA Civ 780).
Factors the court considers include:
- Was the mistake obvious (e.g., clearly marked 'Privileged and Confidential')?
- How quickly did the disclosing party act to correct the mistake upon realising it?
- Would it be unjust to prevent the inspecting party from using the document?
Key Term: Inadvertent Disclosure
The accidental revelation of privileged material to an opposing party, often during electronic disclosure or large-scale document review.
Solicitors receiving documents they realise have been disclosed by mistake are under a professional duty not to read them beyond what is necessary to identify the mistake and must immediately notify the disclosing solicitor.
Worked Example 1.1
A solicitor is reviewing disclosed documents from the defendant. They find an email between the defendant and their lawyer clearly marked 'Legally Privileged - Advice on Settlement Strategy'. The email was listed in Part 1 of the defendant's disclosure list (documents available for inspection). What should the solicitor do?
Answer: The solicitor should immediately stop reading the document, notify the defendant's solicitor of the apparent mistake, and return or delete the document as requested. They should not use the information contained in the email unless the court later grants permission under CPR 31.20, which is unlikely if the mistake was obvious and promptly addressed.
Exam Warning
Be careful to distinguish between mentioning the existence of legal advice and revealing its substance. Only revealing the substance is likely to lead to an implied waiver. Also, remember that privilege belongs to the client, not the lawyer; the lawyer waives it only on the client's authority.
Revision Tip
Focus on the dominant purpose test for litigation privilege and understand the concept of collateral waiver (fairness requiring wider disclosure after partial waiver). For inadvertent disclosure, remember the importance of prompt action by the disclosing party and the obviousness of the mistake.
Consequences of Waiver
Once privilege is waived, the communication or document loses its protected status.
- Disclosure: The material must typically be disclosed to the opposing party upon request.
- Admissibility: It may become admissible as evidence in court.
- Scope: As noted, waiver over part may extend to related privileged material (collateral waiver). This prevents a party from selectively disclosing favourable parts of privileged communications while withholding unfavourable related parts.
- Irrevocability: Waiver is usually final and cannot be retracted.
Loss of Privilege (Other Than Waiver)
Privilege can also be lost in situations other than waiver.
Crime-Fraud Exception
Communications made for the purpose of furthering a crime or fraud are not protected by LPP. This applies even if the lawyer is unaware of the client's criminal or fraudulent purpose.
Public Domain
If privileged information becomes public knowledge through other means (e.g., reported in the media without the client's fault), the confidentiality supporting the privilege is lost, and the privilege may cease to apply.
Worked Example 1.2
During disclosure, a claimant serves a list including communications with their expert witness prepared after litigation was contemplated. The defendant requests inspection. The claimant asserts litigation privilege. However, the claimant's witness statement explicitly summarises the expert's conclusions and states these were reached based on specific instructions provided by the claimant's solicitor. Is the claimant likely to have waived privilege over the instructions?
Answer: Yes, likely an implied waiver. By deploying the substance of the expert's conclusions and referencing the solicitor's instructions in the witness statement, the claimant has put the basis of the expert's opinion (including the instructions) in issue. Fairness would likely require disclosure of the instructions referred to, to allow the defendant to understand the basis of the expert's stated conclusions.
Key Point Checklist
This article has covered the following key knowledge points:
- Legal professional privilege protects confidential lawyer-client communications (legal advice privilege) and communications made for the dominant purpose of litigation (litigation privilege).
- Privilege belongs to the client and can be waived expressly, impliedly, or inadvertently.
- Express waiver is a deliberate disclosure.
- Implied waiver occurs when a party acts inconsistently with maintaining privilege, often by putting the content of privileged advice in issue.
- Inadvertent disclosure of privileged material requires prompt action to rectify; the court may permit use if the mistake was not obvious.
- Waiver of part of a communication may lead to collateral waiver over related material to ensure fairness.
- Privilege does not apply to communications made to further crime or fraud.
Key Terms and Concepts
- Legal Professional Privilege (LPP)
- Dominant Purpose Test
- Waiver
- Inadvertent Disclosure
