Privilege: some common issues

by Colin Passmore, Chairman, City of London Law Society, and Practical Law Dispute Resolution

A practice note that explores several common issues concerning legal professional privilege in English civil litigation. This practice note outlines the principal differences between legal advice privilege and litigation privilege, including the application of the dominant purpose test following the decision in Civil Aviation Authority v R Jet2.com Ltd [2020] EWCA Civ 35. It examines the significant practical implications of case law, such as Three Rivers District Council and others v Governor and Company of the Bank of England [2003] EWCA Civ 474 (Three Rivers No. 5), on defining the "client" within a corporate entity and the resulting challenges for communications involving in-house lawyers and other employees. The guidance also addresses the privilege status of board minutes, the risks of sharing advice with parent companies or regulators, and the rules on waiver. Further topics include the crime-fraud (or iniquity) exception, privilege concerning expert reports, and the process for challenging an opponent's claim to privilege, providing valuable insights for navigating complex disclosure scenarios.