Evidence and disclosure - Privilege and without prejudice co...

Learning Outcomes

This article explains legal professional privilege (legal advice privilege and litigation privilege) and the without prejudice rule in the context of civil litigation, including:

• The core elements of legal advice privilege and litigation privilege, including confidentiality, client identification, and the dominant purpose requirement in both contexts.
• How to determine when litigation is “reasonably in prospect” and how that timing affects whether communications and reports fall within litigation privilege.
• The distinction between privileged lawyer–client advice and non-privileged commercial or factual communications, including internal corporate investigations and interactions with third parties.
• Identification of the “client” in organisations, circulation of advice within a corporate group, and strategies for preserving confidentiality across emails, notes, and internal memoranda.
• The operation of the without prejudice rule, the meaning of “without prejudice save as to costs”, and their combined impact on settlement negotiations and costs arguments.
• Recognised exceptions to privilege and to the without prejudice rule, such as crime–fraud, misrepresentation, estoppel, proving settlement, and explaining procedural delay.
• How privilege and the without prejudice rule interact with disclosure and inspection, including listing in Part 2, redactions, privilege logs, and handling inadvertent disclosure.
• The principles governing waiver, limited waiver, and deployment of privileged material, and how courts prevent unfair “cherry‑picking” in civil proceedings.
• Application of these doctrines to SQE1-style single best answer questions, focusing on careful reading of facts, precise issue-spotting, and eliminating distractor options.

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, and to identify when these doctrines apply and their effect on the disclosure and inspection process, with a focus on the following syllabus points:

• 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.
• Identification of the “client” in organisations and the importance of confidentiality for privilege to attach.
• How “dominant purpose” and “litigation reasonably in prospect” operate for litigation privilege.
• Practical steps to preserve privilege (including engagement letters, document handling, redactions, and protocols for experts).

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.

Privilege interacts closely with CPR 31 (and, in the Business and Property Courts, the disclosure regime under PD 57AD). Parties must disclose relevant documents within their control but may legitimately withhold inspection where privilege applies, provided the list identifies the category of document and the ground for objection without revealing content. Privileged documents should be handled consistently, using secure channels, labelled appropriately, and segregated to reduce the risk of inadvertent disclosure.

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. If a note records a discussion with the opposing party, or a meeting at which both sides were present, it will not be confidential for LPP purposes. Internal circulation of legal advice within a client organisation is generally treated as part of the advice “continuum” where the purpose is to consider or act on legal advice and confidentiality is preserved.

• Lawyer-client relationship: The communication must be between a client (or someone authorised by the client) and a lawyer acting in their professional capacity. UK law protects advice from both external and in-house lawyers when they are acting in a legal capacity. Legal advice given by non-lawyers (e.g., accountants or consultants) is not covered. In corporate contexts, the definition of “client” can be narrow: privilege attaches to communications between the legal advisers and the individuals authorised to obtain legal advice for the entity. Factual material gathered from employees outside the authorised group is not covered by LAP unless it is part of or reveals the legal advice itself.

• 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, and advice on strategy and risk arising from legal rights and obligations. It does not cover purely commercial or operational advice, even if provided by a lawyer. Where a communication has multiple purposes, consider whether obtaining legal advice is the dominant purpose.

• Scope of the “continuum”: LAP extends to ancillary communications forming part of the request for or provision of advice (for example, drafts of advice, internal emails circulating advice for implementation, and attendance notes recording legal advice). Routine administrative communications that do not reveal legal advice are unlikely to be privileged.

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.

Additional illustration:

Worked Example 1.2

A large company commissions its external lawyers to interview engineering staff to gather facts about a product defect before deciding how to respond. No claim has been threatened. Are the interview notes protected by LAP?

Answer:
Not under LAP. They are communications with third parties (employees) for factual investigation, not lawyer-client advice. They may be protected by litigation privilege only if litigation was reasonably in prospect and the dominant purpose was litigation. Otherwise, they will not be covered by LAP.

Practical points for LAP:

• Label communications seeking or giving advice as “Confidential – legal advice”.
• Keep circulation tight (to those needing to know) and avoid mixing legal and commercial commentary in the same communication.
• Maintain separate files for legal advice to preserve confidentiality and reduce the risk of inadvertent disclosure.

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, based on the facts and the party’s state of knowledge. A general business risk or remote possibility is insufficient. By contrast, a serious incident likely to generate claims, a formal allegation, or a regulator’s adverse notice often suffices.

• 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, evaluating claims or defences, interviewing witnesses, instructing experts, preparing proofs, or gathering evidence.

• Confidential communication: As with LAP, confidentiality is required. Communications that are intended to be shared with an opponent or other non-confidential setting will not be privileged.

• Commissioner’s purpose: The dominant purpose test focuses on the purpose of the person who directed the document to be created. Mixed purposes (e.g., safety improvement plus litigation) must be analysed to determine which purpose predominates.

• Timing: Documents created before litigation is reasonably in prospect are not covered by LP, even if later used in litigation. If litigation becomes reasonably foreseeable, subsequent communications prepared for that dominant purpose are protected.

Worked Example 1.3

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).

Worked Example 1.4

A railway operator commissions a safety report after an incident. The report is intended both to improve safety procedures and to inform lawyers in case claims are brought. Claims are likely. Is the report protected by LP?

Answer:
It depends. If the dominant purpose of commissioning the report was litigation (e.g., to obtain evidence and legal advice due to anticipated claims), LP applies. If improving safety was the dominant purpose, LP does not. The commissioner’s dominant purpose is the key.

Practical points for LP:

• Record the purpose and context when commissioning reports or statements (e.g., “prepared in contemplation of litigation”).
• Route instructions through legal advisers where appropriate, and keep a clear audit trail showing the litigation purpose.
• Separate safety/compliance reports from litigation-preparation reports where dual purposes exist, or clearly document the dominant litigation purpose.

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. Also remember that confidentiality and a proper identification of the “client” are essential for LAP, and “litigation reasonably in prospect” is essential for LP.

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. WP protection is not engaged by routine commercial exchanges absent dispute.

• 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. The court looks at substance over form.

• Communication relating to the dispute: The communication must relate to the issues in dispute and aim to resolve them.

• Form and labelling: Communications can be expressly marked “Without Prejudice” or “WP”, but labelling is neither necessary nor conclusive. Unlabelled communications may be protected if they satisfy the criteria; conversely, a document marked WP that is not a genuine settlement communication will not be protected.

• “Without prejudice save as to costs”: This variant allows communications to be withheld on the merits but disclosed to the judge when the court deals with costs, typically after judgment. Formal Part 36 offers are treated as without prejudice save as to costs by rule.

Worked Example 1.5

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.

Further illustrations:

Worked Example 1.6

A solicitor sends a letter not marked WP inviting mediation and proposing payment terms to settle a disputed invoice. Is the letter protected?

Answer:
Likely yes. Although not labelled WP, it is a genuine attempt to settle an existing dispute and relates to the issues. Protection turns on substance, not labelling.

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 (or unambiguous impropriety).
• Where a statement gives rise to an estoppel.
• To explain delay in progressing proceedings.
• Where it is necessary to interpret a concluded settlement agreement.
• “Save as to costs”: WP communications bearing on costs can be shown to the court when the merits are concluded and the costs dispute is determined.

Practical points:

• Use WP labelling consistently for settlement communications and reserve “save as to costs” for material you may wish the court to see on costs only.
• Keep settlement communications separate from non-WP correspondence.
• Record attendance notes of settlement meetings as WP where appropriate.

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). Referring to privileged advice in a statement of case may also trigger inspection rights under CPR 31.14.

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.

Important points on waiver:

• Express waiver: The client can expressly waive privilege and permit inspection. Ensure clarity on scope; limited waiver (to a regulator or in separate proceedings) should be documented to avoid broader waiver by implication.

• Implied waiver (deployment): A party may waive privilege by relying on or disclosing the effect of privileged material. Courts resist “cherry-picking”: disclosing extracts or a summary may require disclosure of the document and related material to prevent unfairness.

• Drafts and work product: Drafts of witness statements and legal advice are typically privileged; serving the final witness statement on the other side waives privilege over the final version but not necessarily over bona fide drafts created in the advice/litigation continuum.

• Redactions: Non-privileged documents containing privileged content may be disclosed with redactions, provided the redactions are explained and justified.

• Inadvertent disclosure: If a privileged document is disclosed or inspected by mistake, the recipient may use it only with the court’s permission. Where the mistake is obvious, the recipient should stop reading and inform the sender. The court can grant relief, including injunctive orders to restrain use, considering fairness and the overriding objective.

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"). Do not reveal the substance of the advice. WP communications are typically identified as such and withheld; where an exception applies (e.g., to prove settlement), describe them accordingly.

• Scope of the duty to search: Parties must conduct a reasonable search proportionate to the case’s complexity, significance, and cost, including relevant electronic documents and metadata. Agree search parameters (keywords, date ranges, custodians) with the other side to reduce disputes, especially in complex commercial claims.

• Public interest immunity (PII): Separate from LPP, documents may be withheld on public policy grounds where disclosure would harm the administration of justice or national interests (e.g., national security, sensitive social services records). Courts balance the public interest in non-disclosure against the interests of justice in the particular case.

• Documents tending to incriminate: In civil proceedings, parties may claim privilege against self-incrimination in respect of documents that would expose them (or in limited cases their spouse/civil partner) to criminal liability, subject to statutory modifications. This is distinct from LPP.

• Experts and witnesses: Where litigation is reasonably in prospect, communications with experts and witness proofs prepared for the dominant purpose of litigation are usually covered by LP. Instruct experts through lawyers and state the litigation purpose in instructions. If experts are jointly instructed by the parties, their reports are generally not privileged between those parties.

• Corporate client identification: Establish at the outset who within the organisation is authorised to seek/receive legal advice (the “client”) and keep factual investigations distinct from legal advice communications to avoid privilege disputes.

• Marking and storage: Use consistent markings (“Confidential – legal advice” or “Prepared in contemplation of litigation”) and store privileged material separately, with access controls. Avoid mixing privileged and non-privileged content in single communications. Consider privilege logs where appropriate.

• 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 (or broader iniquity). If a client seeks legal advice to help commit fraud, the communication is not privileged. The exception is narrowly construed and requires a proper evidential basis.

• Evolving disclosure practice: In the Business and Property Courts, PD 57AD emphasises proportionate, issue-focused disclosure and identification of adverse documents. Privilege remains an absolute bar to inspection: privileged documents are excluded from initial/extended disclosure, but adverse privileged documents must still be considered for listing (with inspection withheld).

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; in corporate settings, define the authorised “client”.
• 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); identify the commissioner’s dominant purpose and timing.
• The Without Prejudice (WP) rule protects communications made in a genuine attempt to settle a dispute from being used as evidence of admissions; “save as to costs” allows later consideration on costs only.
• Privilege belongs to the client and can be waived; implied waiver may occur if privileged content is deployed. 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; provide generic descriptions without revealing content, and keep privileged and non-privileged materials segregated.
• Courts recognise exceptions: for LPP, crime-fraud/iniquity; for WP, misrepresentation/fraud, estoppel, proving settlement, delay explanation, and “save as to costs”.
• Manage inadvertent disclosure promptly; the recipient should refrain from review and notify the sender, and the court can restrain use.
• Public interest immunity and privilege against self-incrimination are separate bases to withhold inspection; courts balance competing interests for PII.

Key Terms and Concepts

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