Litigation privilege allows communication between you and your lawyer or other third parties to remain confidential where it relates to legal proceedings. This applies to your correspondence and documents as well as to any conversations you have had.
If you are involved in a legal dispute which results in litigation and you speak to a lawyer or other party in respect of the matter, the doctrine of privilege means that the court cannot insist that your documents or the advice you are given are disclosed, provided that certain criteria are met.
Who does litigation privilege cover?
Litigation privilege applies to communications and documents provided to a client in legal proceedings or potential legal proceedings. This extends to individuals authorised by their employer to obtain legal advice on behalf of their organisation.
It can also extend to communications with third parties who have a legitimate interest in the case, such as an insurance provider.
What does litigation privilege cover?
The documents covered by litigation privilege are those created in respect of legal proceedings or in anticipation of legal proceedings. There must be a realistic chance of litigation, not just a possibility.
The documents themselves must be connected to the litigation, and this must ve the main purpose of the document. Where the document had a dual purpose — for example, a risk assessment which could also assist a business with planning its strategy— the main purpose of the document needs to be for use in respect of the litigation to be covered by the doctrine of privilege.
When does litigation privilege not apply?
Privilege can be lost or waived where documents are circulated to those who are not classed as being the client.
Similarly, where the main purpose of a document is something other than the anticipated litigation, privilege does not apply.
Ensuring litigation privilege is not lost
It is important to ensure that privilege is not inadvertently lost, and that privileged documents are not shared accidentally.
If privilege is held not to apply, then confidential and sensitive information might need to be disclosed to the other side in legal proceedings.
If you believe that you may be facing litigation, you are advised to speak to an expert litigation solicitor as soon as possible. If you instruct us to represent you, we will advise you as to which documentation can be protected and how you can do this.
We can also ensure that the right framework for communications between key personnel is established, preventing privelged documents from losing the protection of privilege.
We will also advise you on how to minimise risk, like marking documents as being privileged, not compiling documents without identifying whether these are covered by privilege and also ensuring that everyone involved understands that such documents are confidential.
You must be aware of the various ways in which privileged material is dealt withto prevent such privilege being lost. For example, your document may lose its privileged status, if you discuss it in a meeting where minutes are taken or if you create documents that refer to or summarise a document that you wish to keep privileged.
Contact our expert litigation solicitors
If you are involved in a legal dispute, our expert litigation lawyers in Birmingham, London and Northampton can work with you to ensure that privilege is maintained in crucial documents and communications. We can also liaise with the other party to try and negotiate a settlement and avoid litigation.
If you would like to discuss your options on how to proceed, please email us at info@witansolicitors.co.uk or fill in our contact form. We have offices in Birmingham, London and Northampton.
