Introduction
Legal professional privilege and without prejudice communications are fundamental doctrines within the law of evidence, serving to protect the confidentiality of certain communications in legal proceedings. Legal professional privilege safeguards confidential communications between a lawyer and client, ensuring that clients can seek legal advice without fear of disclosure. Without prejudice communications, on the other hand, allow parties to negotiate settlements without admissions being used against them in court. Understanding these doctrines requires an examination of their core principles, key requirements, and the specific conditions under which they apply.
Legal Professional Privilege: An Overview
Legal professional privilege has been part of the English legal system since the 16th century. At its core, it acts as a protective shield, preserving the confidentiality of communications between lawyers and their clients. This ensures that clients can speak openly with their legal advisors without worrying that their words might later be used against them. There are two main types of legal professional privilege: legal advice privilege and litigation privilege. Each serves a specific purpose and comes with particular requirements.
Legal Advice Privilege
Legal advice privilege protects confidential communications between a client and their lawyer when the purpose is to seek or provide legal advice. Think of a private conversation in a secure room—what's said inside remains confidential.
The primary elements of legal advice privilege are:
- Confidentiality: The communication must be intended to be confidential.
- Between Client and Lawyer: The exchange must be solely between the client and their legal advisor.
- Purpose: The communication must be for the purpose of seeking or giving legal advice.
Consider a company discussing upcoming regulations with its in-house legal team. Even if there is no litigation on the horizon, these discussions are protected by legal advice privilege. However, the scope of who is considered the 'client' can be tricky in large organizations. In the case of Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2004] UKHL 48, the court narrowly defined 'client' within a corporate context, limiting it to those employees authorized to seek legal advice. This means that not all internal communications may be covered by privilege, highlighting the importance of understanding who the 'client' is.
Litigation Privilege
Litigation privilege applies to confidential communications between a client, their lawyer, and third parties when litigation is underway or reasonably anticipated. It's like gathering your team for a strategy meeting before a big game—the discussions, plans, and tactics are kept confidential.
The essential elements of litigation privilege are:
- Existing or Anticipated Litigation: There must be legal proceedings in progress or reasonably expected.
- Dominant Purpose: The communication's main purpose must be for the litigation.
- Adversarial Proceedings: The litigation should be adversarial, not investigative or inquisitorial.
For instance, suppose a company anticipates a lawsuit over a product defect. It hires an independent expert to assess the product's safety. Communications with the expert and the resulting report are protected by litigation privilege, as they are prepared for the dominant purpose of the anticipated litigation.
In WH Holding Ltd v E20 Stadium LLP [2018] EWCA Civ 2652, the court clarified that litigation privilege does not cover communications created for purely commercial purposes, even if litigation is contemplated. This highlights that the dominant purpose must be related to the litigation itself.
Without Prejudice Communications
The 'without prejudice' principle allows parties in a dispute to communicate openly in an attempt to settle, without fear that their words will be used against them in court if negotiations fail. It's like taking a time-out during a heated game to discuss a truce—what's said during the break stays off the official record.
The primary elements of without prejudice communications are:
- Genuine Attempt to Settle: The communication must be made in an effort to resolve the dispute.
- Identified as Without Prejudice: It should be expressly or implicitly understood to be 'without prejudice'.
- Mutual Intention: Both parties must intend the communication to be without prejudice.
For example, if two businesses are in a contract dispute, they might exchange letters marked 'without prejudice' to negotiate a settlement. If they cannot reach an agreement, these letters cannot be presented as evidence in court.
There are exceptions to this rule. In Unilever plc v The Procter & Gamble Co [2000] 1 WLR 2436, the court outlined situations where without prejudice communications may be admissible, such as:
- To show that a settlement was reached.
- Evidence of misrepresentation, fraud, or undue influence.
- Claims of estoppel.
- To explain delays.
- Interpretation of settlement agreements.
Complex Scenarios and Exceptions
While privilege and without prejudice communications offer significant protections, there are important exceptions to be aware of.
Crime-Fraud Exception
Privilege does not apply if the communication is made in furtherance of a crime or fraud. In other words, you can't hide behind privilege to commit wrongdoing. For example, if a client seeks advice on how to launder money or conceal fraudulent activities, those communications are not protected. In JSC BTA Bank v Ablyazov [2014] EWHC 2788 (Comm), the court held that if there's a prima facie case of fraud, the court can examine the communications to determine whether privilege applies.
Joint and Common Interest Privilege
When multiple parties share a common interest in a legal matter, they may assert joint or common interest privilege over shared communications. Picture several companies collaborating on a project, and they all consult a lawyer about a shared legal issue. Their communications with the lawyer may be protected by joint privilege. This means one party cannot waive the privilege without the consent of the others.
Limited Waiver
Sometimes, a party might disclose privileged information to a specific person or for a limited purpose, without intending to waive privilege generally. This is known as a limited waiver. In Berezovsky v Hine [2011] EWCA Civ 1089, the court confirmed that sharing privileged documents with a third party for a limited purpose did not amount to a general waiver of privilege.
Without Prejudice Save As To Costs
Communications marked 'without prejudice save as to costs' allow parties to negotiate settlements while preserving the right to refer to those communications when the court considers costs after judgment. This can encourage reasonable settlement offers, as refusing a fair offer might have cost implications.
Practical Applications
Understanding how to apply these doctrines in real-world scenarios is essential. Here are some practical considerations:
- Digital Communications: In today's digital age, ensuring the confidentiality of communications can be challenging. Encryption and secure messaging platforms play an important role in preserving privilege.
- International Contexts: Different jurisdictions may have varying laws on privilege. In cross-border matters, it's important to be aware of these differences to protect sensitive communications.
- Maintaining Privilege Logs: Keeping detailed records of privileged communications helps prevent accidental disclosure. If privileged documents are mistakenly shared, it can be difficult to undo the consequences.
- Inadvertent Disclosure: Establish protocols to handle situations where privileged information is mistakenly disclosed, such as immediately notifying the other party and asserting privilege.
Conclusion
The interplay between legal professional privilege and without prejudice communications can be complicated, particularly in complex legal disputes. Communications may involve both legal advice privilege and litigation privilege, especially when advice is sought in anticipation of litigation. Understanding the specific requirements of each type of privilege is important.
Legal advice privilege requires that the communication is confidential, between client and lawyer, and for the purpose of legal advice. Litigation privilege extends this protection to communications with third parties, provided litigation is in progress or reasonably anticipated, and the dominant purpose is related to that litigation.
Further complicating matters, the 'without prejudice' doctrine operates alongside privilege, allowing parties to negotiate settlements candidly. However, exceptions like the crime-fraud exception and joint and common interest privilege add layers of complexity. For example, while joint privilege protects shared communications among parties with a common interest, the crime-fraud exception removes privilege where communications further illegal activities.
In practice, legal professionals must carefully consider which communications are privileged, how to maintain that privilege, and when exceptions might apply. Detailed knowledge of case law, such as Three Rivers District Council v Governor and Company of the Bank of England (No 6) and Unilever plc v The Procter & Gamble Co, is fundamental for applying these doctrines correctly.
Specific requirements include clearly identifying privileged communications, understanding who is considered the 'client' in corporate contexts, and ensuring that the dominant purpose test is met for litigation privilege. Additionally, when engaging in settlement negotiations, properly marking communications as 'without prejudice' and being aware of the exceptions ensures that protections are upheld.
