Privilege is a legal term which essentially denotes that information is protected from a requirement to disclose it to a third party, e.g., a claimant or a regulator. Over the years, Lockton has encountered a variety of interpretations of how ‘legal privilege’ operates and how a document can become privileged. In view of the complexities involved and the detrimental impact of having to disclose sensitive information, it is worth spending some time revisiting the subject and reminding ourselves of some of the relevant considerations.
Legal advice privilege
Legal advice privilege is the protection afforded to communications between a client and lawyer for the purposes of taking legal advice. In most circumstances, any correspondence requesting legal advice and any subsequent response from a legal representative would be deemed to be privileged - and would not, therefore, be disclosable.
Litigation privilege
Litigation privilege protects all communications between a solicitor, their client, and third parties for the purposes of conducting or receiving information in respect of ongoing or reasonably contemplated litigation. This could include discussions with barristers, medical experts, or other expert witnesses.
Whether a specific document is privileged or not is ultimately a matter for the court. However, the rules are generally restrictive. So it is important to consider the following before putting pen to paper.
Do you need to create the document in the first place?
Sensitive discussions, or those based on opinion rather than fact, should ideally take place verbally. If a written account is required, then this should be drafted carefully and potentially with the support of a legal representative instructed to act in the claim.
What is the ‘dominant purpose’ of the document?
As established in the case of Waugh v. British Railways Board, if a communication is created for numerous reasons, of which litigation is only one, then that document may be disclosable. For privilege to apply, the dominant purpose of the document must relate to litigation which is reasonably contemplated.
Who is copied in to the email?
Ensure all parties copied in to the correspondence would be considered the core ‘client group’ and resist circulating or copying in parties outside that group. It is important to remember that confidentiality is the key to ‘privilege’. Circulating to a wider group could compromise that confidentiality and mean that a document is disclosable.
Copying in-house counsel in to emails does not always make the document privileged
We often come across the belief that simply copying in-house legal counsel in to correspondence will make it legally privileged. As established in Civil Aviation Authority v. R (on the application of Jet2.com Ltd.), the ‘dominant purpose’ test applies to legal advice privilege. So the ‘dominant purpose’ of any documentation or correspondence must be to obtain or provide legal advice. The role of in-house counsel may mean that they have to provide guidance from both legal and commercial perspectives. Separating legal and commercial discussions clearly in correspondence helps ensure the former are protected from disclosure.
Disclosing information to your insurance provider
While it is extremely important to keep brokers and insurers informed of the circumstances and developments relating to any matter that may form an insurance claim, it is also important that privilege is maintained. If you have concerns about the contents of a particular document, it is advisable to speak to your broker by phone and, if necessary, only send the document to the appointed panel legal representatives who are instructed in the claim.
If in doubt, ask a legal representative
Failing to consider privilege and disclosure obligations properly can prove a very costly mistake. If you are at all uncertain, we recommend you speak to a legal representative before taking any further action.
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