The Changing Boundaries of Privilege

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If you or your business are facing a dispute, your first telephone call may well be to your legal advisors. Your next internal email to a colleague however could cause significant issues with your case if you aren’t aware of when your communications are deemed to be ‘privileged’ (and thereby non-disclosable to the other side in the dispute) and when they’re not.

Two of the most widely relied on forms of privilege fall under the umbrella term of ‘legal professional privilege’ which encompasses ‘legal advice privilege’ and ‘litigation privilege’. A recent case however has just ruled that there is no element of litigation privilege which automatically covers internal corporate communications.

As well as there being no separate head of litigation privilege to cover internal corporate communications, the case also ruled that there was also no basis to find documents created for commercial purposes fall under the ambit of litigation privilege.

If you or your business are facing a dispute, there are a number of considerations to bear in mind to ensure you maintain what privilege you have over your communications and manage the documents on which privilege may not apply.

  • immediately put into effect a document creation policy to limit and control the emails, documents and communications created in relation to the dispute to limit or negate the possibility of having to disclose potentially adverse documents
  • ensure that any written advice from your lawyer is disseminated only to those required to have a copy and make sure you do not paraphrase it or put it into your own words in internal communications as you run the risk of the advice losing its legal professional privilege
  • ensure a suitable briefing is made to employees confirming that no documents are to be created or sent relating to the dispute aside those which are absolutely necessary and which are created by persons authorised in accordance with the document creation policy.

If you need assistance with a dispute or with regard to anything in this article, please send us your enquiry and one of our lawyers will be in touch.

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