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Section 42 - Legal Professional Privilege

Chapters: 01 | 02 | 03 | 04 | 05 | annex A | annex B

Chapter 03: What material is subject to LPP?

3.1 LPP predominantly attaches to communications with lawyers. This may include communications between a public authority and:

external lawyers in private practice (solicitors or counsel),
its own salaried in-house legal advisers, including those retained or employed by public authorities such as Government departments in their own legal departments, and
lawyers employed by other public authorities (including for example by the Treasury Solicitor's Department).

However in certain circumstances communications with third parties may attract LPP, for example when seeking evidence from an expert for the purposes of litigation.

3.2 Just because a document has been to or comes from a lawyer does not necessarily mean it will be protected by LPP. It will need to come within one of the two categories of LPP: advice privilege and litigation privilege.

Advice privilege relates to communications between a person and his lawyer provided they are confidential and written for the purpose of obtaining legal advice or assistance in relation to rights and obligations. The extent of this category of LPP is now subject to the judgment of the House of Lords in the Three Rivers case.
Litigation privilege attaches to confidential communications that come into existence, after litigation is in reasonable prospect or is pending, for the dominant purpose of being used in connection with the litigation.

Communications will be 'confidential' if they have taken place in circumstances where a relationship of confidence is express or can be implied. Both lawyer and client generally expect their communications to be confidential. Indeed, professionally, lawyers owe their clients a duty of confidence. LPP will attract to communications that retain that quality of confidence. Within government, the involvement of several departments in such communications will not erode the quality of confidence but if legal advice received by a department is widely shared beyond government and its agencies, consideration will need to be given as to whether it is still confidential for these purposes. Whether or not LPP has been waived, thereby losing the protection of the privilege, is a complex question of law which will turn on the specific facts of the case.

3.3 Whilst there is generally no LPP in the fact of seeking legal advice there may be cases where this could give rise to LPP. Consulting a lawyer is generally a confidential matter and where the underlying rationale for LPP is engaged by the mere fact that a person has consulted a lawyer it is arguable that LPP attaches to the fact of consulting the lawyer as well as to the advice received. It will, however, only rarely be the case that disclosing the fact that legal advice has been taken will in itself disclose the content of the legal advice given. It should also be considered whether the fact that legal advice has been taken will disclose information relating to the formation or development of government policy and so come within section 35.

3.4 Further guidance on what material will attract LPP is given in Annex A to this section. Section 42 also refers to the Scottish rule of confidentiality of communications. Further guidance on this is given in Annex B.