This sets out in more detail what LPP is and when a claim to LPP can
be maintained. It should however be noted that this is a complex area
of law and legal advice will need to be taken in any specific case where
it appears the exemption in section 42 might apply.
There are two main heads of LPP: advice privilege and litigation privilege.
Advice privilege relates to communications and other documents
such as draft statements and reports passing between a person
and his lawyer provided they are confidential and are part of
the continuum of giving and getting advice and assistance in relation
to legal rights and obligations. It covers direct communications
and communications through someone acting as an agent for the
lawyer or the client, but not communications with third parties.
Documents such as reports produced by agents or employees for
their principal or employer are not privileged under this head,
even where the report is subsequently used to enable the principal
or employer to seek legal advice [footnote
5]. The extent of this head of
LPP is subject to the judgment of the House of Lords in the Three
Rivers case.
Litigation privilege attaches to confidential communications
or other documents that come into existence after litigation is
in reasonable prospect or is pending, if they come into existence
for the sole or dominant purpose of giving or getting advice in
regard to the litigation or collecting evidence for use in the
litigation. It applies to communications between the client and
his lawyer, whether direct or through an agent, or between any
one of them and a third party. This head of LPP does not apply
to communications in investigative and non-adversarial proceedings [footnote
6], such as wardship proceedings (although again advice should
be taken to ascertain the extent to which this is the case following
the outcome of the Three Rivers appeal).
The Three Rivers litigation has also raised an issue as to the extent
of the availability of LPP for corporations as opposed to for individuals.
It is not clear however how this may have implications for government
departments. Where this is likely to be an issue legal advice will need
to be taken to ascertain the up-to-date legal position.
The basic rule is that if material attracts LPP it will always attract
LPP. This means that if a claim for LPP can be made in respect of a
document in one case, it can be made in respect of the document in any
subsequent case in which the document is relevant, whether by the person
who was originally entitled to claim LPP or by his successor in title.
For a claim for LPP to be maintained, the information in question
must be confidential. Confidential information may lose its confidential
quality where the information in question is so generally accessible
that in all the circumstances it can no longer be regarded as confidential.
In the normal course, communications between solicitor and client will
be presumed to be confidential. Correspondence between lawyers acting
for the same client will also attract LPP. However although correspondence
between opposing parties to litigation may be confidential it will not
be so in the normal course and will not usually attract LPP.
Information which is protected by LPP may be disclosed to one person
on terms that it is to be treated as confidential so that the quality
of confidentiality is not lost as against another person. Where this
is the case, LPP can still be claimed against that other person.
This means that disclosure of legal advice in one set of proceedings
does not necessarily constitute waiver of LPP for the purposes of subsequent
proceedings, so long as the advice retains its quality of confidentiality
between the parties to the subsequent proceedings at the time of those
proceedings.
Part of a document may contain or refer to privileged material whilst
the remainder of the document does not. Where this is so, careful consideration
will need to be given to the extent to which part of or the whole document
attracts LPP. Where only part of a document attracts LPP it might be
possible to redact the privileged material and disclose the remainder
of the document. It might also be possible to disclose the non-privileged
information in another form as the right under section 1(1)(b) of the
Act is to information, not to the document in which the information
is contained. Care will need to be taken where disclosing part of a
document to ensure that LPP is not inadvertently being waived.
Footnotes
Three Rivers DC v Bank of England (no.5) [2003] 3WLR 667
