Legal professional privilege in England and Wales

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In England and Wales, the principle of legal professional privilege has long been recognised by the common law. It is seen as a fundamental principle of justice, and grants a protection from disclosing evidence. It is a right that attaches to the client (not to the lawyer) and so may only be waived by the client.

The majority of English civil cases are subject to the rules of standard disclosure, which are set out by the Civil Procedure Rules 1998 (the CPR) Rule 31.6.[1] A party makes disclosure of a document by stating that the document exists or has existed.[2]

The right to inspect documents in English civil procedure is governed by CPR Part 31.15. Upon written notice, the party to whom a document has been disclosed has the right to inspect that document (if such inspection would be proportionate given the nature of the case) except where the party making disclosure has the right to withhold inspection.

The Proceeds of Crime Act 2002 (PoCA) requires solicitors (and accountants, insolvency practitioners, etc.) who suspect their clients of money laundering (a term covering a wide range of acquisitive criminal offences) to report them to the authorities without telling the clients they have done so, subject to a maximum punishment of 14 years in jail. However, the Court of Appeal confirmed in 2005 that PoCA does not override legal professional privilege.[3]

The general nature of legal professional privilege[edit]

Legal professional privilege is the principal reason why inspection of documents is refused, and is regarded as a fundamental principle of justice. It is an exception to the general cards on the table outlook of the CPR. Privilege discloses a substantive right to keep privileged material confidential not only in the context of litigation, but generally.[4] Privilege extends beyond a mere evidential rule, and has been regarded as a fundamental principle of justice:

The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal profession privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests.[5]

It is a fundamental human right recognised by the English common law, and by the European Court of Human Rights, which has held it to be part of the right to privacy guaranteed by Article 8 of the Convention[6]

Privilege is absolute, in the sense that once it is established, it may not be weighed against any other countervailing public interest factor,[7] but may only be overridden expressly by statute.

The scope of legal professional privilege[edit]

There are two forms of legal professional privilege:

  • Legal advice privilege protects confidential communications between lawyers and their clients for the purposes of giving or obtaining legal advice.
  • Litigation privilege protects confidential communications between lawyers, clients and third parties made for the purposes of litigation, either actual or contemplated.

General requirements for privilege[edit]

To be regarded as privileged, the communications must be confidential. Communications between a client and his solicitor which the client instructed his solicitor to repeat to the other party are not privileged, because such communications are not confidential.[8] It is necessary that the solicitor or barrister be consulted professionally and not in any other capacity.

Privilege does not extend to facts communicated by the solicitor to the client which cannot be the subject of a confidential communication, even though such facts have a relation to the client's case.[9]

Requirements for legal advice privilege[edit]

For legal advice privilege to apply, the communications in question must be with a professional legal adviser with the sole or dominant purpose of giving or obtaining legal advice.[10] Legal advice privilege extends to advice from salaried (in-house) legal advisers employed by government departments or commercial companies as much as from barristers and solicitors in private practice.[11] The law does not regard the position of these employed legal advisors as being different from those in private practice:

… They are, no doubt, servants or agents of the employer. For that reason [the first-instance judge] thought they were in a different position from other legal advisers who are in private practice. I do not think this is correct. They are regarded by the law as in every respect in the same position as those who practice on their own account. The only difference is that they act for one client only, and not for several clients. They must uphold the same standards of honour and etiquette. They are subject to the same duties to their client and to the court. They must respect the same confidences. They and their clients have the same privileges. … I speak, of course [only] of their communications in the capacity of legal advisers.

Legal advice privilege also applies to communications with foreign lawyers, where the necessary relationship of lawyer and client exists.[13] It does not extend to advisors who are not legally qualified[14] or to communications with members of other professions.[15]

All statements made at joint consultations between parties and their respective solicitors and counsel, even though made by one party to the solicitor or counsel of the other party, are privileged. So are communications made in a professional capacity for the purpose of giving or receiving professional advice, including information received by a solicitor in a professional capacity from a third party and communicated to the client.[16]

The test for legal advice privilege is to establish whether the communication in question was made confidentially for the purpose of legal advice – construing such purposes broadly.[17] That breadth was emphasized by the House of Lords, which has stated that the policy justification for legal advice privilege rests not simply on the right of the individual to obtain confidential legal advice, but also on the public interest in the observance if law and the administration of justice.[18] The House therefore decided that legal advice privilege was to be given the scope commensurate with these wide policy considerations. To achieve this end, legal advice could not be narrowly construed to be limited to advice on the client's legal rights and liabilities. It would be broadly construed, to include advice as to what should prudently and sensibly be done in the relevant legal context. Where there was doubt about the relevant legal context, the court should ask (a) whether the advice related to the rights, liabilities, obligations or remedies of the client under either private or public law; and, if so, (b) whether the communication fell within the policy justification for the privilege.

Requirements for litigation privilege[edit]

In contrast to legal advice privilege (where the relevant category of communications is broadly-construed), for litigation privilege to apply, communications to and from a professional legal adviser or third party (or between them) must take place in the context of, and for the sole or dominant purpose of, actual or contemplated litigation.[19] The litigation must be adversarial in nature (as opposed to inquisitorial or investigative.)[20] However, litigation privilege does not extend to cover documents obtained for the purpose of litigation if they came into existence before litigation was contemplated.[21]

Communication not only with legal advisers but with other agents for the purpose of existing litigation or litigation then in contemplation are privileged if the document comes into existence at the request or on behalf of the legal advisor or for the purpose of obtaining his advice or to enable him to prosecute the litigation.[22]

Beneficiaries of litigation privilege[edit]

Litigation privilege is only engaged in the context of adversarial proceedings, which excludes investigative or inquisitorial proceedings, such as family law care proceedings.[23] For the purpose of legal advice privilege, the term client does not extend to documents produced by employees for the purpose of being sent to the client's solicitor.[24]

Waiver of privilege[edit]

In both categories of privilege (legal advice privilege and litigation privilege) the privilege is that of the client, not of the lawyer or of the third party. Thus, only the client may waive privilege.[25]

Legal professional privilege may be waived unilaterally by the client. This should be contrasted with the privilege which attaches to without prejudice correspondence, which may not be waived without the consent of both parties.[26] A document in respect of which privilege is waived in one action cannot necessarily be used by the opposite party in a subsequent action between the same litigants unless the privilege is once again waived.[27]

The reading out of part of a document by counsel at trial, even without the client's express authority, amounts to a waiver of any privilege attaching to the document as a whole;[28] however, mere reference to a document does not amount to a waiver of privilege.[29] Following the rule of indivisibility of waiver, the disclosure of part of a letter pursuant to a general order for discovery constitutes a waiver of privilege in respect of the whole contents of the letter.[30]

Other parties and other proceedings[edit]

A third party is not in general entitled to rely on a defendant's privilege in relation to a document which came into existence for the purpose of enabling the defendant to obtain legal advice pending litigation unless there is some common interest between the defendant and the third party. However, there is an overriding principle that a defendant or potential defendant must be free to seek such evidence without being obliged to disclose the result of his finding to his opponent. Consequently, where a memorandum was prepared by a third party at the request of a potential defendant to enable him to obtain legal advice, the court would not order the third party to disclose the memorandum to the plaintiff, even though the third party was not at the time a potential defendant and was in effect sheltering the defendant's privilege.[31]

The court may not order disclosure of documents held by solicitors on behalf of clients who are not parties to the action if neither the solicitors nor the clients were involved in any relevant wrongdoing.[32]

Legal advice tendered to a party, and thus privileged in the hands of that party, may nevertheless be discoverable to another party which has a common interest with the party holding the documents such that the party claiming discovery falls within the ambit of the confidence subject to which the advice was tendered.[33]

Fraud nullifies privilege[edit]

Confidential communications between a client and his legal adviser are not privileged if made for the purpose of committing a fraud or crime.[34] For these purposes, it is irrelevant whether the fraud is that of the client, the adviser or a third party acting through an innocent client.[35] Fraud in this context is a wide concept extending to iniquity, which embraces, for example, a plan to enter into transactions at an undervalue to prejudice the client's creditors.[36] However, disclosure of such documents in such circumstances will only be ordered by a court if a particularly strong prima facie case of fraud is shown.[37]

Tax advice[edit]

Lawyers are protected by professional privilege from having to disclose advice that they may provide on clients' tax matters. In contrast, and unlike their American counterparts, British accountants do not enjoy such privilege, and are under general obligations to make disclosures to HM Revenue and Customs. The Chairman of HMRC in February 2010 criticised lawyers who exploited this difference to compete with accountants for clients, saying that he would crush any instances of law firms saying "bring your tax issues to us so we can ensure that HMRC can never get access to them".[38]

In July 2010, the legal professional privilege was the subject of a Court of Appeal case, in which Prudential plc claimed that it should not have to disclose tax advice received from accountants PricewaterhouseCoopers.[39] The Institute of Chartered Accountants in England and Wales (ICAEW) intervened in support of change, but the court's judgment in October rejected the extension of privilege to professions other than law.[40]

See also[edit]

References[edit]

  1. ^ CPR 31.6: "Standard disclosure requires a party to disclose only: (a) the documents upon which he relies; and (b) the documents which (i) adversely affect his own case; (ii) adversely affect another party's case; or (iii) support another party's case; and (c) the documents which he is required to disclose by a relevant practice direction."
  2. ^ CPR 31.3
  3. ^ Bowman v Fels [2005]
  4. ^ R (on the application of Morgan Grenfell & Co.) v Special Comr of Income Tax [2003] 1 AC 563
  5. ^ R v Derby Magistrates' Court, ex p B [1996] AC 487, quoted with approval in R (on the application of Morgan Grenfell & Co Ltd) v Special Comr of Income Tax, para 10. The former case gives a vivid and succinct history of the concept of privilege in English common law.
  6. ^ Campbell v United Kingdom [1992] 15 EHRR 137, which stated at pg 160, para. 46: "It is clearly in the general interest that any person who wishes to consult a lawyer should be free to do so under conditions which favour full and uninhibited discussion. It is for this reason that the lawyer-client relationship is, in principle, privileged." The Court decided that the routine opening of correspondence flowing between a secure category prisoner and his solicitor by the prison authorities violated the prisoner's Article 8 rights.
  7. ^ R v Derby Magistrates' Court, ex p B [1996] AC 487. Lord Nicholls (at p. 512) rejected the submission that a court should carry out a balancing exercise: "In the absence of principled answers to these questions [of how in practice to balance out differing demands regarding the right to justice and the right to non-incrimination, for instance], and I can see none, there is no escaping the conclusion that the prospect of a judicial balancing exercise in this field is illusory, a veritable will-o'-the-wisp. That in itself is a sufficient reason for not departing from the established law."
  8. ^ Conlon v Conlons Ltd [1952] 2 All ER 462, CA
  9. ^ Foakes v Webb[1884] 28 Ch. D 287. Kay,J. drew the following example: "The fact that the solicitor was the person who signed a letter to the other side cannot be a confidential communication. Suppose the solicitor himself were asked that question in the witness box; he could not claim privilege and would be obliged to answer."
  10. ^ Three Rivers District Council v Bank of England (No 5) [2004] 3 WLR 1274. Lord Scott (at p. 1,287) highlighted the necessity of a legal context for the communication: "If a solicitor becomes the client's 'man of business', and some solicitors do, responsible for advising the client on all matters of business, including investment policy, finance policy and other business matters, the advice may lack a relevant legal context … In cases of doubt the judge … should ask whether the advice related to the rights, liabilities, obligations or remedies of the client, either under private law or under public law. If it does not, then, in my opinion, legal advice privilege would not apply."
  11. ^ Alfred Crompton Amusement Machines Ltd v Customs and Excise Comrs (No 2) [1972] 2 QB 102.
  12. ^ Ibid., at page 129.
  13. ^ Re Duncan, Garfield v Fay [1968] P 306. In this case, Ormrod J (as he then was) stated (at p.311): "There is nothing [in the previous case law concerning privilege] to suggest that [the judges] intended to limit the rule to legal advisers whose names appear on the roll of Solicitors of the Supreme Court or who are members of the English Bar. The basis of the privilege is just as apt to cover foreign legal advisers as English lawyers, provided only that the relationship of lawyer and client subsists between them. Any other conclusion would lead to an impossible position for if this court were required to investigate the position of such communications in foreign law, but what law governs the relationship of English client and foreign lawyer, at any rate, when no proceedings are in contemplation? There is no forum and therefore no lex fori. The nationality of the foreign lawyer is as irrelevant as his address for this purpose."
  14. ^ New Victoria Hospital v Ryan [1993] ICR 201, EAT
  15. ^ Slade v Tucker [1880] 14 Ch. D 824.
  16. ^ Re Sarah C Getty Trust, Getty v Getty [1985] QB 956. Here, Mervyn Davies J. stated (at 965): "I see no ground for … allowing a solicitor to be questioned about what it is he may have received in a professional capacity from a third party. On the contrary, I think that to breach the blanket of privilege in the way suggested would erode to an unacceptable degree the wholesome protection that has been provided by the law for the reasons explained by Lord Brougham in Greenhough v Gaskell [1833]…"
  17. ^ Belabel v Air India [1988] Ch. 317. Here, Taylor L.J. (at pp. 329–330), noting a historical divergence in the authorities regarding the scope of such privilege, stated that it was important therefore to return to the principle underlying the rule, and concluded: "…the purpose and scope of the privilege is still to enable legal advice to be sought and given in confidence. In my judgment, therefore, the test is whether the communication or other document was made confidentially for the purposes of legal advice. Those purposes have to be construed broadly." The judge regarded construing the rule as applying only to communications specifically seeking or conveying advice as too narrow, preferring the following scope (p. 332): "Once solicitors are embarked on a … transaction they are employed to ensure that the client steers clear of legal difficulties, and communications passing in the handling of that transaction are privileged (if their aim is the obtaining of appropriate legal advice) since the whole handling is experience and legal skill in action and a document uttered during the transaction does not have to incorporate a specific piece of legal advice to obtain that privilege."
  18. ^ In Three Rivers District Council v Bank of England (No 5) [2004] 3 WLR 1274.
  19. ^ Waugh v British Railways Board [1980] AC 521. In this matter, Lord Wilberforce stated (at 532): "If one accepts that this important public interest [the interest in due administration of justice and disclosure] can be overridden in order that the defendant may properly prepare his case [i.e., for litigation privilege], how close must the connection be between the preparation of the document and the anticipation of litigation? On principle I would think that the purpose of preparing for litigation ought to be either the sole purpose or at least the dominant purpose of it: to carry the protection further into cases where that purpose was secondary or equal with another purpose would seem to be excessive, and unnecessary in the interest of encouraging truthful revelation. At the lowest such desirability of protection as might exist in such cases is not strong enough to outweigh the need for all relevant documents to be made available."
  20. ^ Re L (minors) (police investigation: privilege) [1997] AC 16. Lord Jauncey quoted with approval Lord Simon in Waugh (above, at p. 536): "The system of adversary forensic procedure with legal professional advice and representation demands that communications between lawyer and client should be confidential, since the lawyer is for the purpose of litigation merely the client's alter ego. So too material which is to go into the lawyers's (ie. the client's) brief or file for litigation. This is the basis for the privilege against disclosure of material collected by or on behalf of a client for the use of his lawyer in pending or anticipated litigation …" In Re L, the contemplated legal proceedings were family law care proceedings, which were not to be regarded as adversarial in nature, not being based upon the rights of the parents, but focused on a determination of the future of a child.
  21. ^ Ventouris v Mountain [1991] 3 All ER 472. Lord Bingham said (at p. 612): "The courts must not in any way encroach on the right of a litigant or potential litigant to seek and obtain legal advice on his prospects and the conduct of proceedings under the seal of confidence nor on the right of such a litigant and his legal adviser to prepare for and conduct his case without, directly or indirectly, revealing the effect of that advice. … But it is hard to see how these rights are infringed if a party is obliged to produce an original document which was in existence before litigation was in the air, and which a litigant or his legal adviser have obtained from a third party for the purposes of the litigation, but which the third party could himself be compelled to produce at the trial without any possible ground for objection."
  22. ^ Anderson v Bank of British Columbia [1876] 2 Ch. D 644.
  23. ^ Re L (minors) (police investigation: privilege) [1997] AC 16.
  24. ^ USP Strategies plc v London General Holdings Ltd [2004] EWHC 373 (Ch.)
  25. ^ Anderson v Bank of British Columbia [1876] 2 Ch. D 644.
  26. ^ Walker v Wilsher [1889] 23 QBD 335, CA. The meaning of without prejudice is not defined in the CPR itself, and so carries the meaning attached to it through case law. In Walker, Lindley LJ stated that the words without prejudice mean "without prejudice to the writer of the letter if the terms he proposes are not accepted." If an item of correspondence is marked without prejudice, then without any other qualifying words in that document, then the addressee of the letter and the sender will not be entitled to refer to the document in the context of litigation. The rule applies not only to correspondence (of whatever form) but also to communications of any description which either are expressed to be or which by implication take place in a without prejudice situation. Clearly, the without prejudice rule is not dependent on the use of those word. Lord Griffiths in Rush & Tompkins Ltd v Greater London Council [1989] AC 1280 at 1299 stated: "The rule applies to exclude all negotiations genuinely aimed at settlement whether oral or in writing from being given in evidence. A competent solicitor will always head any negotiating correspondence without prejudice to make clear beyond doubt that in the event of the negotiations being unsuccessful they are not to be referred to at the subsequent trial. However, the application of the rule is not dependent upon the use of the phrase without prejudice and if it is clear from the surrounding circumstances that the parties were seeking to compromise the action, evidence of the content of those negotiations will, as a general rule, not be admissible at the trial and cannot be used to establish an admission or partial admission … the question has to be looked at more broadly and resolved by balancing two different public interests namely the public interest in promoting settlements and the public interest in full discovery between parties to litigation."
  27. ^ Dinham v British Steel Corporation [1986] CLY 115.
  28. ^ Great Atlantic Insurance Co v Home Insurance Co [1981] 2 All ER 485.
  29. ^ Tate and Lyle International Ltd v Government Trading Corpn [1984] LS Gaz R 3341, CA.
  30. ^ Pozzi v Eli Lilley & Co [1986] Times, 3 December.
  31. ^ Lee v South West Thames Regional Health Authority [1985] 2 All ER 385.
  32. ^ Dubai Bank Ltd v Galadari (No 6) [1991] Times, 22 April.
  33. ^ Formic Ltd v Secretary of State acting by the Export Credits Guarantee Department [1995] 1 Lloyd's Rep 692.
  34. ^ R v Cox and Railton [1884] 14 QBD 153.
  35. ^ R v Central Criminal Court, ex. p. Francis & Francis [1989] AC 346, HL.
  36. ^ Barclays Bank v Eustace [1995] 4 All ER 511, CA.
  37. ^ Derby & Co Ltd v Weldon (No 7) [1990] 3 All ER 161.
  38. ^ HMRC on warpath with law firm over 'secret' tax advice, Accountancy Age, 11 February 2010
  39. ^ Court battle rages over legal privilege for tax advisers, Accountancy Age, 22 Jul 2010
  40. ^ ICAEW: Legal privilege rules "unsustainable", Accountancy Age, 13 Oct 2010

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