16th February 2015
The law relating to litigation privilege developed to allow parties to investigate potential disputes without worrying that the documents they create during their investigations might be scrutinised by the other party. Claiming privilege over a document is a valuable right for a potential litigant: a document that is privileged can be withheld from the opposing party (although in litigation it is withheld from the inspection process but its existence must still be disclosed).
When a dispute arises, expert advice is often needed to help analyse the facts and technical and legal issues. Communications with solicitors relating to legal advice will normally be covered by Legal Advice Privilege. But what about your or your solicitors’ confidential communications with other third party experts?
When you or your solicitor instructs an expert, Litigation Privilege will apply where the instruction and consequent communications are made in contemplation of litigation. However, Litigation Privilege can be lost – or indeed not arise at all in certain cases.
For privilege to exist, the document over which it is claimed must meet fairly strict criteria. In particular, it must be a communication between the lawyer or client and the third party, a document made by or on behalf of the client or the lawyer, confidential, be made for the dominant purpose of litigation and litigation must be pending reasonably contemplated or existing;
In a recent case, Starbev GP Ltd v Interbrew Central European Holding BV  EWHC 4038 (Comm), there was insufficient evidence to show that the documents in question had been prepared for the dominant reason of preparing for litigation. As a result, the defendant had to disclose documents which revealed its early investigations and thought processes. How do you avoid getting into a similar situation? How do you protect your right to litigation privilege and avoid having to disclose documents you regard as privileged?
It is important to ensure that your early contact with third parties is handled in a way that protects litigation privilege: after all, you do not want to be in the position of handing over documents that reveal the results of your initial investigations and thought processes. This checklist will help you to do that.
Do keep in mind that not all of the work done by in-house lawyers is privileged. In correspondence, in-house lawyers should separate their legal functions from their business and administrative functions.
Please note: this checklist is for guidance only and is not a substitute for legal advice. In each disputed case, the appropriate action for resolving your dispute will depend on the particular facts and law. If you are in any doubt about the applicability of any of the above steps or the legal issues involved, please contact Gwendoline Davies.
For further information or to discuss how to resolve your dispute, please contact Gwendoline Davies.