What is Legal Professional Privilege and how can it protect me?

Legal Professional Privilege refers to Legal Advice Privilege and Litigation Privilege. It attaches to communications between a solicitor and client, and its purpose is to protect the client (and not the lawyer). It can attach to communications between the lawyer and a third party in certain circumstances, such as reports prepared on instruction in the course of and to assist in litigation.

Legal Advice privilege covers communications which are confidential, which came into existence for the purpose of giving or obtaining legal advice, regardless of whether litigation is contemplated or not. It protects those confidential communications from being demanded by a third party during litigation. For example, communications between a client and his solicitor prior to any dispute arising can be privileged, which means that they cannot be required by the other side in litigation to be relied on. They are confidential and privileged as between the client and his legal adviser.

Litigation privilege developed to allow parties to investigate potential disputes without worrying that the correspondence and documents created during the investigation period will be made available to the other party. A privileged document can be withheld from the other side in litigation. While legal advice privilege usually exists over the correspondence between a lawyer and client, litigation privilege subsists over documents created by third parties which does not form legal advice but which is created in contemplation of litigation, for example expert reports or documents from third party advisers.

There are strict criteria setting out what can be protected by litigation privilege. The document must be either:-

A communication between a lawyer or client and the third party;
A document made by or on behalf of the of the client or lawyer;
Be confidential;
Made for the dominant purpose of litigation;
Litigation must be pending, reasonably contemplated or existing.

If these criteria are not met, then privilege may not exist.

Speak with your solicitor if you have a potential dispute and you want to check how your correspondence or documents may be affected by Legal Professional Privilege.  Better yet, contact our litigation department, Caoimhe Boyce on cboyce@meaby.co.uk to see if we can help you.