Legal professional privilege in civil litigation: an overview

by Practical Law Dispute Resolution in association with A&O Shearman

A practice note offering an overview of the law concerning legal professional privilege within the context of civil litigation in England and Wales. This practice note examines the fundamental principles of legal advice privilege and litigation privilege, as well as the related concepts of joint privilege and common interest privilege. It discusses the nature of privilege as a substantive right and outlines the key requirements for a successful claim, including the necessity for confidentiality and the application of the dominant purpose test. This note explores the practical challenges and nuances that arise, particularly for corporate entities following the restrictive definition of "client" in the Three Rivers cases, and for in-house lawyers distinguishing between legal and non-legal advice. The guidance also addresses crucial topics such as the circumstances that can lead to a loss or waiver of privilege, including collateral waiver and inadvertent disclosure. It further considers the scope and application of key exceptions, such as the iniquity exception for communications with a criminal or fraudulent purpose, and the implications of privilege in regulatory investigations.