New Judgment on Legal Professional Privilege

24/02/2020

There are two types of legal professional privilege:

• Advice privilege – this extends to all confidential communications between a lawyer and client that are made for the purposes of giving or obtaining legal advice. 

• Litigation privilege – this is wider than legal advice privilege and can cover communications with third parties or documents created by third parties (eg investigation reports) providing: (i) litigation is in progress or is in reasonable contemplation; (ii) the communication was made for the sole or dominant purpose of conducting that litigation; and (iii) that the litigation is adversarial.

Legal Advice Privilege

In Civil Aviation Authority v R (on the application of Jet2.com Ltd) [2020] EWCA Civ 35 (https://www.bailii.org/ew/cases/EWCA/Civ/2020/35.html), concerning a judicial review, the Court of Appeal examined the scope of legal advice privilege.

It upheld the High Court’s ruling that the Civil  Aviation Authority could not claim legal advice privilege for emails that were not only sent to in-house counsel seeking her opinion but also to other staff, who were not lawyers, seeking their commercial views.  The Court of Appeal made clear that legal advice privilege only attaches to confidential lawyer-client communications where the dominant purpose is to obtain and give legal advice.

Where companies engage external lawyers, establishing legal advice privilege is unlikely to be difficult as the reason for the engagement will be to obtain legal advice.  The position however with in-house lawyers will not be as straight forward particularly when commercial and legal issues are being discussed at the same time.

Fisher Scoggins Waters are a London based law firm who specialise in construction, manufacturing and engineering matters. If you have recently had a health and safety incident occur in your workplace and require legal advice, please phone us on 0207 993 6960.