19 May, 2022
There are some aspects of law which even confuse Judges, and one of those which crops up time and again is legal professional privilege. Whilst it may seem to be something best left to lawyers to entertain themselves with in a dreary Court on a rainy Monday afternoon, understanding the principles can actually help protect a business before it is too late. If the arguments have begun, it is already too late.
Legal professional privilege is essentially a court-imposed doctrine, designed to protect the fundamental human right to seek effective Counsel (i.e., advice from a Lawyer), or to investigate and properly prepare a case in which a litigant is involved, all without having to disclose that advice or research to anyone. It is a very useful tool; if established, not even the Court or the Police can override it, and the document or communication can be hidden from prying eyes forever, in theory.
But the rules required to establish privilege are nuanced, and nowhere else in the law are you likely to find such varied outcomes from comparatively subtle variations. Privilege is a doctrine of substance, not form, so you cannot just make something privileged; it becomes that way when the conditions are satisfied.
Privilege comes in two forms; legal advice privilege and litigation privilege. The first is aimed at protecting that right to seek legal advice, so that if you are, say, accused of a crime or sued in the civil courts, you should be able to ask a Lawyer for advice about what to do about it. You should also be able to do that without anybody knowing what your Lawyer has advised you. The second is aimed at allowing you to investigate allegations made against you during adversarial proceedings (such as criminal prosecutions or civil actions) so that you can gather evidence together to decide how you will approach it.
Legal advice privilege subsists only between a Lawyer and a Client. The definitions of both are outside of the scope of this short article but, essentially, if a regulated Lawyer provides confidential advice to a client in relation to a specific subject, and the relevant communications or documents were created for the dominant purpose of providing that advice, then they are likely to be protected from disclosure by privilege. By way of an example, if you email a Lawyer seeking advice about a divorce and that Lawyer replies with advice, then legal advice privilege will apply as both emails have come about for the dominant purpose of providing legal advice. Any documents attached to those emails prepared for that purpose may also be privileged, although that is not the case for documents prepared prior to the advice was sought.
Litigation privilege does not require the involvement of a Lawyer at all, although it can do. LP protects confidential communications or documents sent between Lawyer and Client, or either of them and a Third Party, which come into existence during actual or contemplated litigation for the dominant purpose of that litigation. The litigation has to be adversarial and it must be more than just a mere possibility. Again, by way of an example, communications with experts during litigation will be protected from disclosure by privilege, as will the reports that they produce. That allows you to assess whether you have a good case to bring or not before you decide to do so. Medical reports prepared by your GP before you had any idea you were being sued or prosecuted will not be privileged, because they were not created for the dominant purpose of litigation. With me so far? Good.
So why does any of this matter at all? Privilege will either subsist or not, surely? Well, the answer to that is no, not quite. There are many situations where communications or documents are considered to be private or confidential but which are later required to be disclosed. That can often be to the detriment of that party's legal case. The trick is being aware of how documents and communications become privileged so that you can avoid having to disclose them at all.
Post-accident investigations are a good example. If an accident occurs on a construction site then there will usually be protocols in place. You will have a designated Health and Safety Officer and the Principal Contractor, Designer, and other nominated parties will have roles to play in investigating what occurred. You will often need to file a RIDDOR and accident reports, accident books, and first aider's reports may need to be completed. If all of those have been prepared as a result of an agreed work system, a contractual obligation, or a statutory requirement (for instance), then your dominant purpose for preparing them is not to seek legal advice or because you think there may be a claim/prosecution, but because you have to prepare them. Regardless of whether there is a claim or there will be one, or whether you need legal advice, all of those documents are outside of the scope of privilege and will need to be disclosed. Even the prejudicial witness statements.
If a savvy employer is aware of the rules, there are steps that can be taken to reduce the likelihood that disclosure will be required. Firstly, if you use Lawyers to investigate, take statements, and advise on liability, then some or all of those communications and documents will be protected by Legal Advice privilege and you do not even need to establish whether litigation is contemplated or not. That saves you from what is a very difficult task at such an early stage. If litigation is reasonably contemplated as well (in the objective sense), you have two bites at the privileged cherry.
Marking documents with "confidential and privileged" does not change their status, but can be a powerful indicator of a party's state of mind at the time that the communication was made, and it is that which will be assessed by the Court if you have a fight over privilege on your hands. You can also separate privileged documents from non-privileged ones which, again, evidences your state of mind at the relevant time.
Keeping potentially sensitive emails and documents within a small, agreed circle prevents a confidential document or communication from losing that status, as it might do with a wider distribution. You can also watch your wording; if you send an email referring to some legal advice that you have been given by a Lawyer then you will, most likely, be waiving privilege in not only that email but all communications with your Lawyer, but it is perfectly fine to confirm that you have received legal advice as a result of which you have decided to take X, Y or Z steps.
Retaining privilege is unlikely to be at the forefront of anybody's minds when conducting a post-accident investigation but if you keep communications to a minimum, agree a confidential distribution circle, mark and separate sensitive documents, avoid referring to anything sensitive unless absolutely necessary, and seek legal advice at the earliest opportunity, then you will be well on your way to protecting your business in the best way possible.
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