In the absence of litigation, communication with third parties is not privileged. Documents prepared by third parties for the purpose of assisting a client in obtaining legal advice are also not preferred. Therefore, the opinion of a client by an expert is not privileged in the absence of litigation. The situation is more complex when the expert is an employee of a client company, but since the Three Rivers series of cases, the definition of client has narrowed and great care must be taken to determine who exactly the client is. The client may unilaterally waive solicitor-client privilege. On the other hand, there is the privilege associated with impartial correspondence, which cannot be waived without the consent of both parties. [27] A document for which the privilege is waived in an action cannot necessarily be used by the opposing party in a subsequent dispute between the same parties to the proceeding, unless the privilege is revoked again. [28] In the context of procedural secrecy, communications between lawyers and employees who are not part of the corporate client group may be privileged under English law. This is explained below. In both categories of privilege (legal privilege and litigation privilege), the privilege is that of the client, not that of the lawyer or third party.
Thus, only the customer can waive a privilege. [26] Legal advice privilege is not limited to legal advice, but also includes “advice on what to do prudently and reasonably in the relevant legal context.” This includes presentation, commercial or strategic advice insofar as it relates to a client`s legal rights, responsibilities, obligations and remedies. It does not apply to purely strategic or commercial advice that is not provided in a “relevant legal context”. Similarly, it does not apply to the “fruits” of legal advice, such as an agreement or assignment. Lawyers` working papers are preferred only if they betray or give an indication of the content of the legal opinion. Recent Law Society guidelines suggest that UK lawyers who have not newly graduated as EEA lawyers will be treated as third-country lawyers after the Brexit transition period ends, unless otherwise agreed. Third-country lawyers operating in the EU are not covered by EU legal privilege. While it is true that much attention has been paid to the issue of “client” identification, each of the above components presents its own challenges (both practical and legal). Sometimes it may be necessary for legal advice to be disseminated outside the client group (the people within the client who deal with the issue on a daily basis) – for example, to the board of directors, which may not be “the client” for legal advice purposes. This is possible under English law, but must be done carefully.
For procedural privilege to apply, communications must also be made for the sole or primary purpose of conducting the litigation, and the dispute must be adversarial and not investigated. Whether a document is privileged is more a question of content than form: simply marking documents as privileged and confidential, or forwarding them to a lawyer, cannot make a non-privileged document a privileged document. The rules and definitions below specify when the privilege applies under English law. It should not be assumed that all communications with lawyers and other non-legal advisors are protected from disclosure. Although privileged documents may be disseminated under English law, this must be done with the utmost care. Confidentiality is essential, and privileges can be lost if privileged material is disseminated without appropriate safeguards. The law on the privileged status of documents produced in the context of internal investigations has been the subject of intense debate in the light of recent case law, in which allegations of privileges on documents produced in the course of such investigations have been thoroughly examined. The application of privileges in this area is likely to be very fact-specific; The courts will carefully consider the evidence to consider, for example, whether litigation was reasonably contemplated at the time of the investigation and whether that was the primary purpose of the investigation. There are two main types of privilege in English law: legal privilege and litigation privilege. There are strict rules about when each type applies.
Procedural privilege applies only in the context of adversarial proceedings, which excludes investigative or inquisition procedures such as family law care proceedings. [24] For the purposes of solicitor-client privilege, the term client does not apply to documents prepared by staff for sending to the client`s counsel. [25] [clarification needed] When an investigation is conducted with a view to a proceeding that is not yet ongoing, the overriding subject matter of the investigation and all documents submitted to it must always be recorded, provided that the procedure is carried out. This can be done by indicating the proposed plaintiffs or defendants for the anticipated litigation and the problems in that litigation; This should be done in terms that you would be prepared to use to support a claim of privilege.
