Scope of the privilege
1. Are communications between an attorney and client protected? Under what circumstances?
Yes. There are two principal forms of legal professional privilege (LPP) that exist in England and Wales, namely legal advice privilege and litigation privilege.
Legal advice privilege
Legal advice privilege protects confidential communications between a lawyer and client, provided the communications are for the dominant purpose of seeking or receiving legal advice. This form of privilege applies regardless of whether litigation has commenced or is in prospect. The essential ingredients of legal advice privilege are the following.
The communication must be confidential. If a confidential communication between lawyer and client becomes public and is no longer confidential it cannot be privileged.
There must be some transfer of information between lawyer and client for the dominant purpose of giving or receiving legal advice. In the context of seeking legal advice, organisations should be cautious of internal communications that do not include a lawyer, as they may very well fail to be protected by legal advice privilege.
The communication must be with a lawyer. All members of the legal profession in England and Wales are considered lawyers for the purpose of legal advice privilege. This includes solicitors, barristers and in-house lawyers qualified as solicitors or barristers. Legal advice privilege also extends to communications with foreign lawyers who are properly accredited in their respective jurisdiction.
The communication must be with the lawyer’s client. It is notable that there have been some teething problems in extending privilege from the simple concept of an individual client seeking advice from his or her lawyer to corporate persons, particularly in larger organisations. The question of who is the client in an organisation is not always a straightforward one. In attempting to answer this question the courts have focused on the narrow group of individuals employed by a company who are expressly charged with seeking and receiving legal advice for and on behalf of the company (Three Rivers District Council and others v The Governor and Company of the Bank of England (Three Rivers 5)  QB 1556 (CA)).
The application of this principle means that not every manager or employee of a company will necessarily form part of the client for the purpose of attracting legal advice privilege. In SFO v Eurasian Natural Resources Corporation Ltd  EWCA CIV 2006 (ENRC) and Jet2.com v CAA  EWCA Civ 35 the Court of Appeal endorsed the narrow approach to interpreting ‘the client’. As a result, current and former employees, who are interviewed as part of an investigation by company counsel for the purpose of advising the company, are not part of ‘the client’. The effect is that legal advice privilege cannot be claimed over interview notes with employees who are outside the instructing group. The Court of Appeal in both ENRC and Jet2.com, observed that the Three Rivers principle put English law out of step with other common-law jurisdictions, and was unsatisfactory, and, unbound by authority, they would have sought to depart from it. However, the court made clear that only the Supreme Court would be properly placed and able to do so.
In the context of internal investigations, it is not uncommon for a large number of non-lawyers to need to work alongside a legal team. Particularly where litigation or regulatory action cannot be reasonably contemplated or where litigation is not the dominant purpose of the investigation (see below on litigation privilege) careful consideration should be given as to how the investigation team is composed (ie, who is the instructing body for the purposes of the internal investigation?), and on what premise privilege can be asserted. It would be prudent to: define the team at an early stage; be clear on what premise privilege is being asserted; and contemporaneously document this throughout the investigation.
For the dominant purpose of legal advice
Legal advice privilege does not attach to commercial or strategic advice given by external or in-house counsel. The advice must be legal, which includes advice as to what should prudently and sensibly be done in a relevant legal context. It is not uncommon for an email from an in-house lawyer to a company to contain a mixture of legal advice and commercial advice. In such circumstances only the part of the communication giving legal advice is privileged. In the context of a disclosure exercise, the document may fall to be disclosed, albeit in a redacted form.
Recently, the Court of Appeals, in The Civil Aviation Authority v R (on the application of Jet2.com Limited),  EWCA Civ 35, clarified that parties seeking to rely on legal advice privilege must demonstrate that the dominant purpose of the communication in question must either have been to obtain or give legal advice.
Litigation privilege protects confidential communications between either a lawyer and third parties, or a client and third parties. It stems from the principle that a litigant should be able to obtain evidence upon pending or contemplated litigation free from fear that the results of any communication will be disclosable.
Litigation privilege applies only where adversarial proceedings involving a client have begun or are in reasonable contemplation, and only covers documents that are created for the dominant purpose of assisting or obtaining advice in relation to, actual or contemplated litigation (including avoiding or settling such litigation).
The requirement that litigation must exist or be in reasonable contemplation means that in the context of actual or contemplated criminal or regulatory investigations, one must carefully consider whether litigation privilege arises, or whether it is only legal advice privilege that may apply.
In 2018, the Court of Appeals was called on to examine litigation privilege in the ENRC matter and to revisit a High Court decision that temporarily refined and narrowed the test for whether ‘litigation is in reasonable contemplation’ by concluding that the test would not be met simply because a criminal investigation was in reasonable contemplation. The High Court considered that only contemplation of a prosecution, and not contemplation of an investigation, amounted to ‘litigation’ for the purpose of litigation privilege. The Court of Appeals walked back much of this reasoning, concluding that criminal proceedings in the particular circumstances were in fact reasonably contemplated at the point where ENRC’s lawyers had commenced an internal investigation, and that communications between ENRC and the SFO made it clear that criminal proceedings were conceivable:
[T] he whole sub-text of the relationship between ENRC and the SFO was the possibility, if not the likelihood, of prosecution if the self-reporting process did not result in a civil settlement.
While welcomed, the Court of Appeals judgment in ENRC (and a subsequent case in WH Holding Ltd v E20 Stadium LLP  EWCA Civ 2652) does not mean that one should expect courts to liberally uphold litigation privilege claims in all cases, nor is it expected to greatly discourage enforcement authorities from challenging companies’ privilege claims. The Court of Appeals has signalled that courts are prepared to interpret litigation privilege narrowly against its defining features, and that each case will need to be assessed against its unique circumstances.
As a whole, the intricacies of privilege render an internal investigation, particularly an investigation where criminal or regulatory misconduct is suspected, a difficult course that must be chartered with particular care. Given the differences between the two forms of privilege, knowing whether one or both apply is critical in mapping out how an investigation can be conducted without the risk of losing privilege. All of this underscores the importance of a meticulous and well-documented approach to legal advice and litigation privilege before or at the earliest possible stages of any internal investigation, which approach should be mirrored throughout the investigation’s lifetime.
Other types of privilege that are worthy of note include the following.
Without prejudice privilege – Essentially an evidential rule, the concept of without prejudice privilege applies to any communications between disputing parties that are a good faith attempt to settle the dispute and excludes these communications from later being used as evidence by either of the parties or disclosed to third parties. The High Court has recently acknowledged that a form of ‘without prejudice privilege’ covers communications between an institution and a regulator, in this case, the Financial Conduct Authority, while negotiating a regulatory penalty (Property Alliance Group Limited v The Royal Bank of Scotland Plc  EWHC 1557 (Ch) Bliss J).
Common interest privilege – Privileged documents can be shared with a third party, while also maintaining their privileged status if the third party shares a common interest in the subject matter of the document or litigation.
Privilege against self-incrimination – Privilege against self-incrimination exempts persons from being compelled to produce documents or provide information that might incriminate them in any potential or current criminal proceedings in the United Kingdom. It may be arguable that a trial judge in civil proceedings has a discretion to permit a witness to refuse to answer a question that may expose him or her to foreign prosecution.Answer contributed by Oliver Powell, Saaman Pourghadiri, William J. Boddy and Andrew P. Thornton-Dibb
Outer Temple Chambers and McGuireWoods
2. Does the privilege only protect legal advice? Does it also protect non-legal communications between an attorney and client, such as business advice?
It is a requirement of legal advice privilege that it must be for the dominant purpose of legal advice. Commercial or strategic advice given by a lawyer is unlikely to be privileged.
With litigation privilege, the communication similarly risks not being privileged in circumstances where it has not been created for the dominant purpose of assisting, or obtaining advice in relation to, adversarial proceedings.
Particularly in the context of internal investigations, companies need to be mindful of the way in which they: setup the investigation team; how they deal with internal communications and communications with lawyers; and how they evidence the type of privilege being claimed and the premise on which it is claimed.
In Property Alliance Group Limited v The Royal Bank of Scotland Plc  EWHC 1557 (Ch)  EWHC 3161, RBS sought to claim legal advice privilege in relation to material created through the work of an “Executive Steering Group” (which included and was overseen by the bank’s external lawyers) that oversaw an internal investigation into allegations of LIBOR manipulation and related regulatory enquiries. Specifically, RBS claimed privilege over two classes of documents, firstly tables that updated the group on the progress of the investigation, and secondly notes and summaries reflecting the lawyer’s views on the investigations. This was challenged by the claimant on the premise that legal advice privilege did not apply to these documents in that context, and, further, that the context was strategic or commercial advice as opposed to legal.
The Court accepted RBS’ argument that the documents represented a “continuum of communication” so that legal advice could be properly sought and given. The Court held that the first class of documents was created to provide up-to-date summaries of legal advice requested and required, while the second class was created to enable the lawyers to make suggestions about what the client needed to do next.
Finally, and importantly, the court accepted that there was a clear public interest in communications between a lawyer and a client being privileged in the context of this type of regulatory investigation and that there was a need for lawyers in these circumstances to be able to give candid factual briefings and legal advice free from fear of disclosure.
The Court of Appeals, in Jet2.com v CAA, also tackled the question of whether legal advice privilege attaches to emails where lawyers and non-lawyers are copied into the same email. The Court reasoned that the starting point in any such determination is to focus on the dominant purpose of the document in question, and that the extent to which a lawyer is fulfilling a legal role in relation to the communication, rather than a commercial one, is also relevant but not necessarily decisive.Answer contributed by Oliver Powell, Saaman Pourghadiri, William J. Boddy and Andrew P. Thornton-Dibb
Outer Temple Chambers and McGuireWoods
3. Is a distinction made between legal advice related to litigation and other legal advice?
Legal advice privilege only applies to communications between a lawyer and the client who has instructed the lawyer to provide advice. It does not generally apply to communications with third parties. The position is different in relation to litigation privilege, where in addition to direct communications between lawyer and client, communications with third parties are privileged. The dominant purpose of the communication must be for use in, or advice in relation to, litigation. The litigation must be reasonably in prospect, and it must be adversarial. The communication must have been made under conditions of confidentiality. In addition, the purpose must have been to enable legal advice to be sought or given, in connection with the litigation.
The rationale for this extension of privilege to third parties is based on the long-standing legal right to have the ‘freest possible communication’ between lawyer and client, thus ensuring that they can communicate confidently and without inhibition with a third party who might be able to assist the client’s case.
Third parties will typically include experts and witnesses, and in particular the communications with them during the preparation for the case. The position was neatly summarised by Cotton LJ in Wheeler v Le Marchant (1881) 17 Ch D 675:
[T] he solicitor in preparing for the defence or for bringing the action, and all communications he makes for that purpose, and the communications made to him for the purpose of giving him the information, are, in fact, the brief in the action, and ought to be protected.
In Three Rivers (No 6), Lord Scott reasserted the importance of the principle extending to third parties on the basis that “each party should be free to prepare his case as fully as possible without the risk that his opponent will be able to recover the material generated by his preparations.”Answer contributed by Oliver Powell, Saaman Pourghadiri, William J. Boddy and Andrew P. Thornton-Dibb
Outer Temple Chambers and McGuireWoods
4. What kinds of documents are protected by the privilege? Does it cover documents that were prepared in anticipation of an attorney–client communication? Does it cover documents prepared during an attorney-led internal investigation?
Documents that may be subject to privilege have been widely defined. They include all communications, by whatever means, between client and lawyer and third parties.
However, it is, of course, the content and the purpose of the document that determines whether it is privileged or not. For example, how should any records of communications preceding the advice or litigation be treated? If the documents are created in contemplation of seeking advice or embarking on litigation, and with the instruction of lawyers in mind, even though formal instruction may not have taken place at the time of creation, communications between the client and lawyers will be privileged.
It is also important to identify who the client is in circumstances where advice privilege is claimed. In Three Rivers (No 5), the Bank of England sought to claim privilege over records created some 10 years prior. The records were internal communications within the Bank relating to submissions made to the Bingham inquiry into the collapse of BCCI in 1991. An internal committee was set up to oversee all submissions made to the Bingham Committee and all evidence provided to it. In carrying out this work the bank’s lawyers had gathered information from numerous employees of the bank. Ten years later, BCCI’s liquidators brought proceedings against the bank and requested disclosure of these internal records. The bank claimed that they were privileged for the purposes of that litigation but the Court of Appeal rejected their assertion.
It was established that the documents over which privilege was claimed comprised of notes made by bank officials on the orders of the internal committee, some of which were seen by lawyers, some were commissioned by lawyers, and some were communicated by the internal committee to the lawyers. However, other similar records were not seen by the lawyers. The Court of Appeal held that legal advice privilege could only be claimed in respect of documents that: (1) actually passed between lawyer and client; or (2) evidence the content of such communications. In short, the judgment seems to suggest that information from non-designated employees of the client, who are not authorised or appointed to instruct lawyers or receive legal advice will not be deemed to be privileged. This reading of the judgment is to the effect that advice privilege is not available for internal or inter-employee communications, even if made in preparation for instructing the legal team, or which lead to drafting documents requested by them. Despite attracting sustained criticism in academic circles, the principles of general application remain binding law in England and Wales and have been more recently applied in two first instance authorities: Astex Therapeutics v AstraZeneca  EWHC 2759; and the RBS Rights Issue Litigation  EWHC 3161 (Ch). The matter was further also considered in SFO v ENRC  EWHC 1017 (QB), with Andrews J agreeing with paragraph 64 of the RBS judgment: ‘the fact that an employee may be authorised to communicate with the corporation’s lawyer does not constitute that employee the client or a recognised emanation of the client.’
Following the Court of Appeal’s decision in ENRC (which did not alter the High Court’s ruling on legal advice privilege)the position in English law is that where there is an extant criminal investigation, documents generated by a company and its external counsel during an internal investigation into its activities (eg, notes of what lawyers are told by witnesses) are not subject to legal professional privilege unless: (1) the document records a communication with a person who falls within the narrow definition of client (set out above); (2) a claim to lawyer’s working papers can be made out; or (3) litigation was in reasonable contemplation.
Following ENRC and the RBS Rights Issue Litigation, a claim for privilege over lawyers’ working papers will only succeed if the documents would betray the trend of legal advice. It is not enough to say that the note was taken by a lawyer and, therefore, must reflect that lawyer’s thinking. This said, documents containing factual evidence presented to a committee or board of a body corporate suspected of committing a criminal offence would attract legal advice privilege so long as the document can be said to form part of a continuum of communication between lawyer and client that included legal advice (as opposed to merely a summary or recitation of factual findings).
As a final note, in practice a question can arise as to whether attachments to an email, that are pre-existing documents and in their original form not privileged, adopt the privileged status of the email if it contains legal advice. A recent Court of Appeals decision clarified that where an email is a privileged communication, that status does not extend to an attached pre-existing document that, on its own, would not otherwise be protected by the privilege (Sports Direct International Plc v The Financial Reporting Council  EWCA Civ 177).Answer contributed by Oliver Powell, Saaman Pourghadiri, William J. Boddy and Andrew P. Thornton-Dibb
Outer Temple Chambers and McGuireWoods
5. To what extent must the communication be confidential? Who can be privy to the communication without breaking privilege?
Confidentiality is a prerequisite for privilege. While it will not on its own be determinative of whether privilege can be claimed, if the communication is not confidential then there is no question of legal professional privilege arising or being maintained.
In so far as legal advice privilege is concerned, communications between a lawyer and a client are privileged if they are both confidential and for the purpose of seeking legal advice from a solicitor or providing it to a client. In contrast, litigation privilege only protects confidential communications once litigation is reasonably in prospect, between either: a lawyer and a client; a lawyer and an agent (whether or not that agent is a lawyer), a lawyer and a third party and the client and a third party.
On the premise that confidentiality is a fundamental component of privilege, a loss of confidentiality will lead to a loss of privilege. Accordingly, it is important that those dealing with privileged documents do not circulate them too widely. Those who routinely deal with privileged material would be well advised to ensure that privileged documents are marked as ‘confidential and privileged’ and impress upon any recipients that the material is not for general circulation, thus reiterating the importance of treating the material as confidential. Particular care should be given by clients or lawyers who provide material to a media outlet or public relations company. While a document might be prepared for use in litigation (eg, proof of evidence), a failure to keep it confidential (eg, widely providing a copy of the proof of evidence to encourage witnesses to come forward) will result in the loss of litigation privilege.
The presence of an interpreter during a legal conference will not break the confidentiality of discussions between the client and the lawyer. The interpreter has professional obligations to the client and the lawyers, namely a duty to truthfully interpret the instructions so to give effect to the meeting. The role of the interpreter will not destroy the existing privilege.Answer contributed by Oliver Powell, Saaman Pourghadiri, William J. Boddy and Andrew P. Thornton-Dibb
Outer Temple Chambers and McGuireWoods
6. Is the underlying information privileged if it can be obtained from a non-privileged source?
Information that was not made in privileged circumstances does not automatically become privileged simply because it is passed to a lawyer for advice or in relation to extant/contemplated litigation.
The Palermo (1883) 9 PD 6 (CA) established that copies of pre-existing documents, namely depositions, obtained by lawyers from a third party for the purposes of litigation were privileged, even though the originals were not privileged. While the Palermo remains “good law”, it has been the subject of judicial and academic criticism and is subject to important exceptions. For example, it will not apply where the party still has the original documents in his control, or previously had the documents in his control.Answer contributed by Oliver Powell, Saaman Pourghadiri, William J. Boddy and Andrew P. Thornton-Dibb
Outer Temple Chambers and McGuireWoods
7. Are there any notable exceptions or caveats to the privilege?
Broadly, there are five areas where communications that would otherwise appear to satisfy the relevant requirements for legal advice privilege or litigation privilege are not protected by the privilege:
- The iniquity exception – there is no privilege in documents or communications that are themselves part of a crime, fraud or iniquity, or that seek to give legal advice about how to facilitate the commission of a crime, fraud or iniquity (R v Cox and Railton (1884) 14 QBD 153 and Barclays Bank Plc and others v Eustice and others  EWCA Civ 29).
- Better right of another party – if a document which would otherwise be privileged is available to the opposing party in the litigation, or if the party has the right to obtain the document, then the fact that the document is privileged will be irrelevant (O’Rourke v Darbishire  AC 581);
- Where secondary evidence may be given – in circumstances where the contents of document(s) have been made known to a third party who wishes to prove the document(s) in proceedings against the client, legal professional privilege may not apply, though this may simply be a species of the rule that once confidentiality is lost in a document so is privilege.
- Particular relationships – privilege cannot be claimed against another party who has a joint interest in the subject matter of a communication at the time that it comes into existence.
- Statutory exceptions – there are some instances where a statute will exclude/override the protection that would otherwise be afforded by legal professional privilege (eg, section 291(1)(b) IA 1986 and RIPA 2000). NB the court will only exclude LPP where the language of the statute is clear. It will not do so by implication.
For many years it had been thought that where information that would otherwise be protected by legal professional privilege constituted a material fact in the proceedings it will would not be privileged but this was rejected by Ramsay J in Farm Assist Limited (in Liquidation) v Secretary of State for Environment, Food & Rural Affairs  EWHC 3079 (TCC).
In addition to the above, it should be noted that communications between in-house lawyers do not generally attract legal professional privilege in the context of European Commission competition investigations (Akzo Nobel Chemicals Ltd & Akcros Chemicals Ltd v European Commission) (Case C-550/07 P).
Finally, while the provision of privileged documents to regulators under an expressly agreed limited waiver of privilege does not waive privilege as against third parties, parties engaged in regulatory actions should be careful how they conduct any parallel civil proceedings. The manner in which a party conducts its civil case could see them waiving and losing privilege (Property Alliance Group Limited v The Royal Bank of Scotland Plc  EWHC 1557 (Ch)).Answer contributed by Oliver Powell, Saaman Pourghadiri, William J. Boddy and Andrew P. Thornton-Dibb
Outer Temple Chambers and McGuireWoods
8. Are there laws unrelated to privilege that may protect certain communications between attorney and client?
There are circumstances where a common-law duty of confidentiality will apply as between a lawyer and their client. As a rule of thumb, if information is given in circumstances where it is expected that a duty of confidence applies, that information cannot ordinarily be disclosed without the consent of the provider. In addition to “judge-made” law, some statutory provisions expressly confirm that privilege will apply (eg, section 114(4) Medicines Act 1968 and paragraph 11 of Schedule 7 Data Protection Act 1998). However, the powers of regulators and prosecutors to compel the production of documents extends to confidential (though not privileged) documents. Similarly, confidentiality will not in itself necessarily protect a document from disclosure in civil proceedings.Answer contributed by Oliver Powell, Saaman Pourghadiri, William J. Boddy and Andrew P. Thornton-Dibb
Outer Temple Chambers and McGuireWoods