Check Your Legal Privilege

Legal advice privilege is a substantive right recognised in England and Wales that allows a client to withhold disclosure to a court and third parties of any written or oral information protected by that privilege.

It attaches to confidential documents or communications between a client and a lawyer, which were made or sent for the dominant purpose of giving or receiving legal advice.

Legal advice privilege is a substantive right recognised in England and Wales that allows a client to withhold disclosure to a court and third parties of any written or oral information protected by that privilege.

It attaches to confidential documents or communications between a client and a lawyer, which were made or sent for the dominant purpose of giving or receiving legal advice.

Advising the firm where you work: Occasionally as a private practice lawyer, you may be advising your own Firm on a matter which falls within your area of practice. For example, if you are an employment lawyer, you may be called upon to advise your Firm on internal employment matters (where doing so is compatible with your obligations to the Firm). In such circumstances, your advice to your firm may be legally privileged, provided that it is clearly identified that you are acting in your capacity as a legal adviser and the Firm as an entity is your client for these purposes. You should identify who your internal instructing client or client group is on behalf of the Firm (for example, a particular individual like the General Counsel or perhaps a group of individuals like the management or executive committee) in the same way that you would if you were advising an external client. Similarly, it is prudent to document the arrangement and client group and keep this under review as necessary.

To sustain a claim to legal advice privilege, the relevant document or communication must be created or sent for the dominant purpose of obtaining or receiving legal advice – see Civil Aviation Authority v R Jet2.com Ltd [2020] EWCA Civ 35.

If the sole purpose of the document or communication is to obtain or receive legal advice, then the ‘dominant purpose’ test will be satisfied.

If, however, a document or communication has been created or sent for a dual or multiple purpose(s) (for example, an internal investigation report for remedial purposes as well as to ascertain rights and liabilities in actual or contemplated litigation) it will be necessary to show that ‘giving or obtaining’ legal advice was the purpose for its creation. A secondary, or even equal, purpose will not be sufficient. Whether the ‘dominant purpose’ test is met is an issue of fact that the courts will consider from an objective standpoint.

Difficulties may arise when ascertaining the dominant purpose of multi-addressee emails sent simultaneously to various individuals for their advice or comments, including a lawyer for their input.

If the dominant purpose is to obtain the non-legal or commercial views of the non-lawyer addressees, then it will not be privileged, even if a subsidiary purpose is simultaneously to obtain legal advice from the lawyer addressee(s).

You may wish to analyse the email by considering them as separate communications to each recipient and asking whether if the email were sent to the lawyer alone, it would have been privileged. If the answer is no, then it is unlikely that the same email to the other recipients will be privileged. If the answer is yes, then the question arises as to whether the email to the non-lawyers is privileged, because in substance its dominant purpose is to settle instructions to the lawyer (as between the non-lawyers) or to disseminate legal advice.

It is also worth bearing in mind that if the legal and non-legal advice in the document is sufficiently separate, it is usually possible to redact the genuinely legally privileged parts of the document (see GE Capital Group Ltd v Bankers Trust Co [1995] 1 WLR 172).

Additionally, if the legal and non-legal parts of the document are so intermingled that distinguishing the two and severance are impossible for practical purposes, then the courts have indicated that they may accept that the dominant purpose of the whole document is the giving or obtaining of legal advice (see Civil Aviation Authority v R Jet2.com Ltd [2020] EWCA Civ 35).

Any information whether oral or written (which satisfies the other criteria for privilege to be accorded as set out later on in the tool) may qualify.

The information may for example, be in a communication, like an email or in a stand-alone document.

For private practice lawyers, this may include a variety of communications and documents produced for a client which contains legal advice, for example, legal advice memos, comments on draft correspondence or emails containing legal advice.

For in-house lawyers, relevant categories of documents which may potentially contain privileged information include but are not limited to the following:

(a) Sections of Board Minutes recording legal advice.
(b) Draft script produced by the in-house lawyer setting out how to run a performance management meeting.
(c) Legal memos or advice emails to HR regarding disciplinaries and grievances.
(d) Investigation report and emails with management in respect of a matter giving rise to actual or contemplated litigation.
(e) Advice in relation to the legal risks of the business entering into a share purchase agreement (although any due diligence on the target company which is not created for the purpose of seeking legal advice will not be privileged).
(f) Email from an authorised contract manager requesting legal advice on the proposed terms of a customer contract.

Please note that the fact that a document is contained on this list does not indicate that they will in fact be privileged. You should follow the remaining steps in the decision tree and apply the other relevant criteria to consider whether the document may in fact be privileged.

Also note that attaching a pre-existing document to a communication with a lawyer (even if that communication seeks legal advice) will not make the pre-existing attachment privileged, if it was not previously – see Financial Reporting Council Ltd v Sports Direct International plc [2018] EWHC 2284 (Ch). 

Legal advice is not confined to formalistic advice on the law. It is sufficient for it to be advice on what should prudently or sensibly be done in a relevant legal context – see Three Rivers District Council and others v Bank of England [2004] UKHL 48).

This would include the rights, liabilities, obligations or remedies of the client, and likely presentational, strategic and risk management advice in respect of the foregoing. Essentially, the test will be whether you are being consulted as a lawyer for your legal skills. However, if the advice relates to commercial business matters (e.g. investment policy, finance policy and administrative or other business matters) it may lack a relevant legal context.

Privilege can apply to documents that disclose the substance (nature and content) of the lawyer-client communications (for example, the part of a company’s board minutes that records legal advice given by an in-house or external lawyer). However, note that a document will also not be privileged simply because it takes account of legal advice. It must expressly communicate or make clear in an obvious manner the substance of the legal advice.

It is not necessary for each communication to contain an express request for advice. If there is a continuum of communication between solicitor and client aimed at keeping both informed, privilege is likely to attach. See Balabel v Air India [1988] WLR 1036.

Legal advice is not confined to formalistic advice on the law. It is sufficient for it to be advice on what should prudently or sensibly be done in a relevant legal context – see Three Rivers District Council and others v Bank of England [2004] UKHL 48).

This would include the rights, liabilities, obligations or remedies of the client, and likely presentational, strategic and risk management advice in respect of the foregoing. Essentially, the test will be whether you are being consulted as a lawyer for your legal skills. However, if the advice relates to commercial business matters (e.g. investment policy, finance policy and administrative or other business matters) it may lack a relevant legal context.

Privilege can apply to documents that disclose the substance (nature and content) of the lawyer-client communications (for example, the part of a company’s board minutes that records legal advice given by an in-house or external lawyer). However, note that a document will also not be privileged simply because it takes account of legal advice. It must expressly communicate or make clear in an obvious manner the substance of the legal advice.

It is not necessary for each communication to contain an express request for advice. If there is a continuum of communication between solicitor and client aimed at keeping both informed, privilege is likely to attach. See Balabel v Air India [1988] WLR 1036.

To sustain a claim to legal advice privilege, the relevant document or communication must be created or sent for the dominant purpose of obtaining or receiving legal advice – see Civil Aviation Authority v R Jet2.com Ltd [2020] EWCA Civ 35.

If the sole purpose of the document or communication is to obtain or receive legal advice, then the ‘dominant purpose’ test will be satisfied.

If, however, a document or communication has been created or sent for a dual or multiple purpose(s) (for example, an internal investigation report for remedial purposes as well as to ascertain rights and liabilities in actual or contemplated litigation) it will be necessary to show that ‘giving or obtaining’ legal advice was the purpose for its creation. A secondary, or even equal, purpose will not be sufficient. Whether the ‘dominant purpose’ test is met is an issue of fact that the courts will consider from an objective standpoint.

Difficulties may arise when ascertaining the dominant purpose of multi-addressee emails sent simultaneously to various individuals for their advice or comments, including a lawyer for their input.

If the dominant purpose is to obtain the non-legal or commercial views of the non-lawyer addressees, then it will not be privileged, even if a subsidiary purpose is simultaneously to obtain legal advice from the lawyer addressee(s).

You may wish to analyse the email by considering them as separate communications to each recipient and asking whether if the email were sent to the lawyer alone, it would have been privileged. If the answer is no, then it is unlikely that the same email to the other recipients will be privileged. If the answer is yes, then the question arises as to whether the email to the non-lawyers is privileged, because in substance its dominant purpose is to settle instructions to the lawyer (as between the non-lawyers) or to disseminate legal advice.

It is also worth bearing in mind that if the legal and non-legal advice in the document is sufficiently separate, it is usually possible to redact the genuinely legally privileged parts of the document (see GE Capital Group Ltd v Bankers Trust Co [1995] 1 WLR 172).

Additionally if the legal and non-legal parts of the document are so intermingled that distinguishing the two and severance are impossible for practical purposes, then the courts have indicated that they may accept that the dominant purpose of the whole document is the giving or obtaining of legal advice (see Civil Aviation Authority v R Jet2.com Ltd [2020] EWCA Civ 35).

To sustain a claim to legal advice privilege, the relevant document or communication must be created or sent for the dominant purpose of obtaining or receiving legal advice – see Civil Aviation Authority v R Jet2.com Ltd [2020] EWCA Civ 35.

If the sole purpose of the document or communication is to obtain or receive legal advice, then the ‘dominant purpose’ test will be satisfied.

If, however, a document or communication has been created or sent for a dual or multiple purpose(s) (for example, an internal investigation report for remedial purposes as well as to ascertain rights and liabilities in actual or contemplated litigation) it will be necessary to show that ‘giving or obtaining’ legal advice was the purpose for its creation. A secondary, or even equal, purpose will not be sufficient. Whether the ‘dominant purpose’ test is met is an issue of fact that the courts will consider from an objective standpoint.

Difficulties may arise when ascertaining the dominant purpose of multi-addressee emails sent simultaneously to various individuals for their advice or comments, including a lawyer for their input.

If the dominant purpose is to obtain the non-legal or commercial views of the non-lawyer addressees, then it will not be privileged, even if a subsidiary purpose is simultaneously to obtain legal advice from the lawyer addressee(s).

You may wish to analyse the email by considering them as separate communications to each recipient and asking whether if the email were sent to the lawyer alone, it would have been privileged. If the answer is no, then it is unlikely that the same email to the other recipients will be privileged. If the answer is yes, then the question arises as to whether the email to the non-lawyers is privileged, because in substance its dominant purpose is to settle instructions to the lawyer (as between the non-lawyers) or to disseminate legal advice.

It is also worth bearing in mind that if the legal and non-legal advice in the document is sufficiently separate, it is usually possible to redact the genuinely legally privileged parts of the document (see GE Capital Group Ltd v Bankers Trust Co [1995] 1 WLR 172).

Additionally if the legal and non-legal parts of the document are so intermingled that distinguishing the two and severance are impossible for practical purposes, then the courts have indicated that they may accept that the dominant purpose of the whole document is the giving or obtaining of legal advice (see Civil Aviation Authority v R Jet2.com Ltd [2020] EWCA Civ 35).

Adversarial litigation includes court and/or tribunal proceedings, arbitrations and foreign litigation. However, documents or communications created or sent in relation to inquisitorial or investigative proceedings (including criminal investigations short of prosecution or internal grievance procedures) do not attract litigation privilege.

Litigation will be regarded as being reasonably contemplated when there is a real likelihood rather than a mere possibility of litigation. A distinct possibility that someone might make a claim sooner or later, or a general apprehension of litigation will not suffice. Although this does not mean that the chance of litigation needs to be more than 50%.

To satisfy a court that litigation was reasonably contemplated, you will likely need to establish that some event has occurred, or some circumstance subsists upon which it is more likely than not that the client will sue or be sued (as an identifiable Claimant or Defendant as relevant) in respect of a particular cause of action and remedy and that there is some justification for this belief.

For example, in United States of America v Philip Morris Inc [2004] EWCA Civ 330 the court held that a solicitor’s advice to a tobacco company in relation to creating a document management policy was not litigation privileged. Although the advice was sought because the company was apprehensive someone might bring a smoking related illness claim sooner or later due to (i) the growing volume of tobacco litigation in the United States and (ii) the fact that claims were being made against its sister company in the US, the court highlighted that the company itself had not been sued in over 15 years and it had not received any letters before action or other precursors of contentious litigation.

It may be prudent to document that you consider litigation is reasonably in contemplation prior to creating or sending the relevant document or communication. Whilst such a record will not be determinative, it may be indicative for evidential purposes.

Any information whether oral or written (which satisfies the other criteria for privilege to be accorded as set out later on in the tool) may qualify.

The information may for example, be in a communication, like an email or in a stand-alone document.

For private practice lawyers, this may include a variety of communications and documents produced for a client which contains legal advice, for example, legal advice memos, comments on draft correspondence or emails containing legal advice.

For in-house lawyers, relevant categories of documents which may potentially contain privileged information include but are not limited to the following:

(a) Sections of Board Minutes recording legal advice.
(b) Draft script produced by the in-house lawyer setting out how to run a performance management meeting.
(c) Legal memos or advice emails to HR regarding disciplinaries and grievances.
(d) Investigation report and emails with management in respect of a matter giving rise to actual or contemplated litigation.
(e) Advice in relation to the legal risks of the business entering into a share purchase agreement (although any due diligence on the target company which is not created for the purpose of seeking legal advice will not be privileged).
(f) Email from an authorised contract manager requesting legal advice on the proposed terms of a customer contract.

Please note that the fact that a document is contained on this list does not indicate that they will in fact be privileged. You should follow the remaining steps in the decision tree and apply the other relevant criteria to consider whether the document may in fact be privileged.

Also note that attaching a pre-existing document to a communication with a lawyer (even if that communication seeks legal advice) will not make the pre-existing attachment privileged, if it was not previously – see Financial Reporting Council Ltd v Sports Direct International plc [2018] EWHC 2284 (Ch). 

Any information whether oral or written (which satisfies the other criteria for privilege to be accorded as set out later on in the tool) may qualify.

The information may for example, be in a communication, like an email or in a stand-alone document.

For private practice lawyers, this may include a variety of communications and documents produced for a client which contains legal advice, for example, legal advice memos, comments on draft correspondence or emails containing legal advice.

For in-house lawyers, relevant categories of documents which may potentially contain privileged information include but are not limited to the following:

(a) Sections of Board Minutes recording legal advice.
(b) Draft script produced by the in-house lawyer setting out how to run a performance management meeting.
(c) Legal memos or advice emails to HR regarding disciplinaries and grievances.
(d) Investigation report and emails with management in respect of a matter giving rise to actual or contemplated litigation.
(e) Advice in relation to the legal risks of the business entering into a share purchase agreement (although any due diligence on the target company which is not created for the purpose of seeking legal advice will not be privileged).
(f) Email from an authorised contract manager requesting legal advice on the proposed terms of a customer contract.

Please note that the fact that a document is contained on this list does not indicate that they will in fact be privileged. You should follow the remaining steps in the decision tree and apply the other relevant criteria to consider whether the document may in fact be privileged.

Also note that attaching a pre-existing document to a communication with a lawyer (even if that communication seeks legal advice) will not make the pre-existing attachment privileged, if it was not previously – see Financial Reporting Council Ltd v Sports Direct International plc [2018] EWHC 2284 (Ch). 

To sustain a claim to legal advice privilege, the relevant document or communication must be created or sent for the dominant purpose of obtaining or receiving legal advice – see Civil Aviation Authority v R Jet2.com Ltd [2020] EWCA Civ 35.

If the sole purpose of the document or communication is to obtain or receive legal advice, then the ‘dominant purpose’ test will be satisfied.

If, however, a document or communication has been created or sent for a dual or multiple purpose(s) (for example, an internal investigation report for remedial purposes as well as to ascertain rights and liabilities in actual or contemplated litigation) it will be necessary to show that ‘giving or obtaining’ legal advice was the purpose for its creation. A secondary, or even equal, purpose will not be sufficient. Whether the ‘dominant purpose’ test is met is an issue of fact that the courts will consider from an objective standpoint.

Difficulties may arise when ascertaining the dominant purpose of multi-addressee emails sent simultaneously to various individuals for their advice or comments, including a lawyer for their input.

If the dominant purpose is to obtain the non-legal or commercial views of the non-lawyer addressees, then it will not be privileged, even if a subsidiary purpose is simultaneously to obtain legal advice from the lawyer addressee(s).

You may wish to analyse the email by considering them as separate communications to each recipient and asking whether if the email were sent to the lawyer alone, it would have been privileged. If the answer is no, then it is unlikely that the same email to the other recipients will be privileged. If the answer is yes, then the question arises as to whether the email to the non-lawyers is privileged, because in substance its dominant purpose is to settle instructions to the lawyer (as between the non-lawyers) or to disseminate legal advice.

It is also worth bearing in mind that if the legal and non-legal advice in the document is sufficiently separate, it is usually possible to redact the genuinely legally privileged parts of the document (see GE Capital Group Ltd v Bankers Trust Co [1995] 1 WLR 172).

Additionally if the legal and non-legal parts of the document are so intermingled that distinguishing the two and severance are impossible for practical purposes, then the courts have indicated that they may accept that the dominant purpose of the whole document is the giving or obtaining of legal advice (see Civil Aviation Authority v R Jet2.com Ltd [2020] EWCA Civ 35).

Legal advice is not confined to formalistic advice on the law. It is sufficient for it to be advice on what should prudently or sensibly be done in a relevant legal context – see Three Rivers District Council and others v Bank of England [2004] UKHL 48).

This would include the rights, liabilities, obligations or remedies of the client, and likely presentational, strategic and risk management advice in respect of the foregoing. Essentially, the test will be whether you are being consulted as a lawyer for your legal skills. However, if the advice relates to commercial business matters (e.g. investment policy, finance policy and administrative or other business matters) it may lack a relevant legal context.

Privilege can apply to documents that disclose the substance (nature and content) of the lawyer-client communications (for example, the part of a company’s board minutes that records legal advice given by an in-house or external lawyer). However, note that a document will also not be privileged simply because it takes account of legal advice. It must expressly communicate or make clear in an obvious manner the substance of the legal advice.

It is not necessary for each communication to contain an express request for advice. If there is a continuum of communication between solicitor and client aimed at keeping both informed, privilege is likely to attach. See Balabel v Air India [1988] WLR 1036.