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Privilege – a primer

30 January 2014

Claims to privilege under English law play a huge part in not only litigation but also regulatory investigations and resolution. 

It is crucial to be clear on the extent of privilege and dispel sometimes mistaken notions of the protection afforded to communications with lawyers whether you wish to use privilege as a shield (to avoid the disclosure of harmful material) or a sword (to force the disclosure by others of material harmful to them).

Here are a few helpful pointers:

  • privilege cannot be claimed unless the evidence in question is confidential - once it becomes public privilege is lost
  • the underlying purpose of privilege is to allow free access to a lawyer's professional skill and judgment - this includes all members of the legal profession: solicitors, barristers, in-house lawyers and foreign lawyers.  In EU competition law investigations, however, communications with in-house lawyers will not be treated as privileged
  • privilege cannot extend (other than where litigation is in contemplation) to advice given by an accountant or tax adviser (who is not a lawyer)
  • having a lawyer copied on an email but not for the purposes of seeking legal advice or in the context of litigation will not of itself make the communication privileged
  • marking a document "Privileged & Confidential" helps identify documents which might be privileged but in and of itself has no bearing on whether a document is, in fact, privileged
  • often companies will wish to engage in a fact finding exercise following an incident - if there is a real likelihood of adversarial proceedings, then litigation privilege will apply to any such exercise but if not, then if lawyers are involved and are advising in a relevant legal context legal advice privilege may apply.  Companies may therefore wish to ensure lawyers are closely involved in any significant internal investigation which might result in regulatory or third party action
  • privileged documents can be shared with third parties such that privilege is not lost but care needs to be taken on the basis on which that takes place.

The rules on privilege are complex and nuanced.

For more information please contact Rhys Novak, Partner

T: +44 (0)20 7427 6563