Legal professional privilege (England & Wales)
Encyclopedia
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. A party makes disclosure of a document by stating that the document exists or has existed.
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.
However, the Proceeds of Crime Act 2002
requires solicitors (and accountants, insolvency practitioners, etc.) who suspect their clients of tax evasion to report them to the authorities without telling the clients they have done so, subject to a maximum punishment of 14 years in jail. This affects even solicitors handling cases of divorce and transfers of assets within families, and accountants who uncover a possibly inadvertent claim for expenses.
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
Privilege is absolute, in the sense that once it is established, it may not be weighed against any other countervailing public interest factor, but may only be overridden expressly by statute.
Legal Advice Privilege: legal advice privilege protects confidential communications between lawyers and their clients for the purposes of giving or obtaining legal advice.
Litigation Privilege: litigation privilege protects confidential communications between lawyers, clients and third parties made for the purposes of litigation, either actual or contemplated.
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.
Legal advice privilege also applies to communications with foreign lawyers, where the necessary relationship of lawyer and client exists. It does not extend to advisors who are not legally qualified or to communications with members of other professions.
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.
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. 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. 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.
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.
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. 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.
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; however, mere reference to a document does not amount to a waiver of privilege. 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.
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.
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.
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 warned lawyers in February 2010 to exercise discretion in how they exploit this difference in their marketing
strategies.
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
. The ICAEW intervened in support of change, but the court's judgment in October rejected the extension of privilege to other profession
s.
England and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
, the principle of legal professional privilege has long been recognised by the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
. 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
Civil Procedure Rules 1998
The Civil Procedure Rules are the rules of civil procedure used by the Court of Appeal, High Court of Justice, and County Courts in civil cases in England and Wales...
(the CPR) Rule 31.6. A party makes disclosure of a document by stating that the document exists or has existed.
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.
However, the Proceeds of Crime Act 2002
Proceeds of Crime Act 2002
The Proceeds of Crime Act 2002 is an Act of the Parliament of the United Kingdom which provides for the confiscation or civil recovery of the proceeds from crime and contains the principal money laundering legislation in the UK.-Background:...
requires solicitors (and accountants, insolvency practitioners, etc.) who suspect their clients of tax evasion to report them to the authorities without telling the clients they have done so, subject to a maximum punishment of 14 years in jail. This affects even solicitors handling cases of divorce and transfers of assets within families, and accountants who uncover a possibly inadvertent claim for expenses.
The general nature of Legal Professional Privilege
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. Privilege extends beyond a mere evidential rule, and has been regarded as a fundamental principle of justice:It is a fundamental human right recognised by the English common law, and by the European Court of Human Rights
European Court of Human Rights
The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...
, which has held it to be part of the right to privacy guaranteed by Article 8 of the Convention
Privilege is absolute, in the sense that once it is established, it may not be weighed against any other countervailing public interest factor, but may only be overridden expressly by statute.
The scope of Legal Professional Privilege
There are two forms of legal professional privilege, which apply to differing groups of people:Legal Advice Privilege: legal advice privilege protects confidential communications between lawyers and their clients for the purposes of giving or obtaining legal advice.
Litigation Privilege: 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
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. 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.
Requirements for Legal Advice Privilege
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. 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. The law does not regard the position of these in-house legal advisors as being different from those in private practice:Legal advice privilege also applies to communications with foreign lawyers, where the necessary relationship of lawyer and client exists. It does not extend to advisors who are not legally qualified or to communications with members of other professions.
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.
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. 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. 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
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. The litigation must be adversarial in nature (as opposed to inquisitorial or investigative.) However, litigation privilege does not extend to cover documents obtained for the purpose of litigation if they came into existence before litigation was contemplated.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.
Beneficiaries of Litigation Privilege?
Litigation privilege is only engaged in the context of adversarial proceedings, which excludes investigative or inquisitorial proceedings, such as family law care proceedings. 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.Waiver of Privilege
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.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. 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.
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; however, mere reference to a document does not amount to a waiver of privilege. 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.
Other parties and other proceedings
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.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.
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.
Fraud nullifies Privilege
Confidential communications between a client and his legal adviser are not privileged if made for the purpose of committing a fraud or crime. For these purposes, it is irrelevant if the fraud is that of the client, the adviser or a third party acting through an innocent client. 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. 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.Tax advice
Lawyers are protected by professional privilege from having to disclose advice that they may provide on clients' taxTax
To tax is to impose a financial charge or other levy upon a taxpayer by a state or the functional equivalent of a state such that failure to pay is punishable by law. Taxes are also imposed by many subnational entities...
matters. In contrast, and unlike their American counterparts
Accountant-client privilege
Accountant–client privilege is a confidentiality privilege, or more precisely, a group of privileges, available in American federal and state law. Accountant–client privileges may be classified in two categories: evidentiary privileges and non-evidentiary privileges.An evidentiary privilege is one...
, British accountants
British qualified accountants
British qualified accountants are full voting members of United Kingdom professional bodies that evaluate individual experience and test competencies for accountants....
do not enjoy such privilege, and are under general obligations to make disclosures to HM Revenue and Customs. The Chairman of HMRC warned lawyers in February 2010 to exercise discretion in how they exploit this difference in their marketing
Marketing
Marketing is the process used to determine what products or services may be of interest to customers, and the strategy to use in sales, communications and business development. It generates the strategy that underlies sales techniques, business communication, and business developments...
strategies.
In July 2010, the legal professional privilege was the subject of a Court of Appeal
Court of Appeal of England and Wales
The Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Supreme Court of the United Kingdom above it...
case, in which Prudential plc
Prudential plc
Prudential plc is a multinational financial services company headquartered in London, United Kingdom.Prudential's largest division is Prudential Corporation Asia, which has over 15 million customers across 13 Asian markets and is a top-three provider of life insurance in mainland China, Hong...
claimed that it should not have to disclose tax advice received from accountants PricewaterhouseCoopers
PricewaterhouseCoopers
PricewaterhouseCoopers is a global professional services firm headquartered in London, United Kingdom. It is the world's largest professional services firm measured by revenues and one of the "Big Four" accountancy firms....
. The ICAEW intervened in support of change, but the court's judgment in October rejected the extension of privilege to other profession
Profession
A profession is a vocation founded upon specialized educational training, the purpose of which is to supply disinterested counsel and service to others, for a direct and definite compensation, wholly apart from expectation of other business gain....
s.
See also
- Accountant-client privilegeAccountant-client privilegeAccountant–client privilege is a confidentiality privilege, or more precisely, a group of privileges, available in American federal and state law. Accountant–client privileges may be classified in two categories: evidentiary privileges and non-evidentiary privileges.An evidentiary privilege is one...
- Priest-penitent privilegePriest-penitent privilegeThe priest–penitent privilege, also known as the clergy privilege, clergy–penitent privilege, confessional privilege, and ecclesiastical privilege, is an application of the principle of privileged communication that protects the contents of communications between a member of the clergy and a...
- Reporters' PrivilegeReporters' PrivilegeReporters' privilege in the United States, is a "reporter's protection under constitutional or statutory law, from being compelled to testify about confidential information or sources"...
- Shield lawShield lawA shield law or reporters' privilege is legislation designed to provide a news reporter with the right to refuse to testify as to information and/or sources of information obtained during the news gathering and dissemination process.-Definition:...
- State Secrets PrivilegeState Secrets PrivilegeThe state secrets privilege is an evidentiary rule created by United States legal precedent. Application of the privilege results in exclusion of evidence from a legal case based solely on affidavits submitted by the government stating that court proceedings might disclose sensitive information...
- Public Interest ImmunityPublic Interest ImmunityPublic-interest immunity is a principle of English common law under which the English courts can grant a court order allowing one litigant to refrain from disclosing evidence to the other litigants where disclosure would be damaging to the public interest...
- Admissible evidenceAdmissible evidenceAdmissible evidence, in a court of law, is any testimonial, documentary, or tangible evidence that may be introduced to a factfinder—usually a judge or jury—in order to establish or to bolster a point put forth by a party to the proceeding...
- Right to silenceRight to silenceThe right to remain silent is a legal right of any person. This right is recognized, explicitly or by convention, in many of the world's legal systems....