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Title goes hereSubtitle goes here
27 April 2010Name Surname One
Name Surname Two
Liverpool Insurance Institute
Breakfast Briefing
Legal Professional Privilege
10 March 2015
Chris Gough
Consultant
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Learning Objectives
o The concept of “privilege” and why it exists
o Document generation with implications for litigation
o The stakeholders in the generation of documents
o Determining whether privilege attaches
o Practical strategies to assure protection
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Basic Principles (1) - Inclusivity
o Administration of Justice (good decisions at trial)
o Public interest (desire for confidence in outcomes)
o All relevant material available and included when deciding
cases
o Conflict arises with alternative and competing public
interest…
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Basic Principles (2) – Right to
unfettered legal adviceo Legal system should work
efficiently
o People need to candidly investigate their position and
seek professional legal advice (access to justice)
– Orderly conduct of every day affairs
– Proper conduct of court proceedings
TO ACHIEVE ALL THAT…
o Communications between clients and lawyers must be
uninhibited.
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Pause, reflect, conflicting interests…
o If ALL material is open to scrutiny by the Court
(“Inclusivity
principle”)
THEN
o What implications for communication with solicitor or own
investigations “in contemplation of litigation”?
o (Think about the insured!)
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Answer: Legal Professional Privilege
o The right not to disclose:
– Communications passing between lawyer and client created for
the purpose of giving/receiving advice
Legal Advice Privilege
– Documents which were created for the dominant purpose of
aiding the conduct of litigation (actual or reasonably in
contemplation).
Litigation Privilege
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Document Generation
o When might sensitive documents be generated?
– Pre-event risk assessments & method statements
– Near miss / similar fact accident reports/riddor
notifications
– Post-event accounts of accident
– Pre and post-event internal emails (“idle chatter”)
– Work diaries
– Personal diaries
– H&S Accident investigation process
– Board of Inquiry hearings and reports
– Communications with lawyers advising in respect of the
“event”
– Board minutes
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Stakeholders in the Process…
o M.D.?
o F.D.?
o H&S Manager?
o Technical and “Quality” assurance manager (“TQM”)?
o Foreman/Team Leader?
o Colleagues/witnesses?
o Injured party?
o Any issues raised by that?
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Litigation Privilege – Discouraging
the Ostrich?
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Litigation Privilege – Why it exists
o Insured under threat
o Known event/accident/circumstance
o Reasonably certain potential claimant/class of litigant
o Overwhelming interest in assessing
– Factual event
– Factors combining to have caused it
– Potential for liability
o Turning the stones unattractive if everything = “evidence”
o Knowledge-based decision making v “head in the sand”
o Closing the gap…
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Litigation Privilege – When it applies
o The test for LP to apply:
– Document/communication created confidentially
– Between/by lawyer & client, lawyer and third party, client
and TP
– For dominant purpose of conducting or aiding conduct of
o Actual litigation
o Litigation which is reasonably in prospect
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Litigation Privilege – Confidentiality
Testo Information NOT in the public domain
o What if that changes?
o The whistle-blower?
o Poor internal safeguards and restrictions on access?
o Electronic transmission and ease of communication?
o Consider strategies for document protection/safeguarding…
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Litigation Privilege – Dominant
Purpose Testo Balancing the conflicting public interests
o Limits protection available by considering purpose of
document; was litigation dominant intention behind it?
o Court objectively assesses purpose based on background
o Purpose at time of creation, not subsequent usage
o If created for more than one purpose, may fail test
(Tchenguiz v SFO 2013)
o Litigation must be a “real likelihood” rather than mere
possibility (USA v Phillip Morris and BAT Ltd) [2003]
o Litigation “may happen”; not necessarily greater than 50%
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Practical strategies to promote
“privilege”(1) - Authorised Employeeso If everyone is “special”
then nobody is!
o Implication for material produced?
o “Authorised Employees” (EAs)
– which employees are authorised to communicate with the
lawyers?
– Include in-house lawyers
– Include all employees likely to be involved in the matter
o Only AEs should create investigation documents
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Practical strategies to promote
“privilege” (2) – Document Creationo AEs only responsible for
fact gathering (or instruct lawyers)
o Evidence captured by AEs recorded in documents
addressed to Lawyers (simple process to set up)
o Board minutes/other minutes should NOT summarise
sensitive legal advice
o Refer to advice as separate document/in second set of
minutes
o Mark internal correspondence “Confidential and for purpose
of obtaining legal advice”
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Practical strategies to promote
“privilege”(2) – Document Creation…o Mark correspondence to the
lawyers “Privileged and
Confidential”
o Avoid written communication (internal or external)
concerning contentious matters (especially what type?)
o Encourage oral discussion of relevant matters and limit
written documents to neutral records of fact
o Where a document does contain opinion ensure it is fully
reasoned to avoid later misconstruction out of context
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Practical strategies to promote
“privilege”(3) - Internal circulation…o Legal advice may need
sharing internally
o Send hard copies rather than emails
o Mark all pages “privileged and confidential”
o Advise employees the hatches have been battened
– Should limit circulation of sensitive information
– Avoid disseminating or commenting on legal advice where
possible
– Discourage from keeping private diaries/notebooks
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Practical strategies to promote
“privilege”(4) Comms with 3rd Partieso Secure sensitive
advice/information in person (a meeting)
o Authorised Employee/Lawyer should be present
o AE/Lawyer should make note and mark it “P&C”
o Be cautious about sharing legal advice with interested
parties
o Make clear:
– Advice is confidential and privileged information
– Purpose for which it has been disclosed
– No intention to waive privilege in respect of the advice or
information
– Acknowledgment and acceptance of terms required
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Legal Advice Privilege (LAP)
o “communications between lawyers and their clients
whereby legal advice is sought or given” (Three Rivers DC
v Bank of England) [2004]
o Can be used as means of cloaking corporate internal
investigations where lawyers are appointed to “oversee”
investigation
– Specific retainer entered with lawyer to advise on specific
event
– Lawyer commissions AE to undertake internal investigation
– Authorised Employee collates information to submit to external
lawyer
– All reports and notes submitted to external lawyer who gives
initial view (LAP attaches to all notes and communication)
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Recent “incursions” around Privilege
o The Times, 19 Feb 2015
– Claim in Investigatory Powers Tribunal
– Gov’t admits intelligence service breached human rights
– Intercepted and handled legally privileged communications
between lawyer and clients
o The Times, 5 February 2015
– Director of SFO (David Green QC) ready to mount test case
against companies obstructing investigations
– Companies allegedly hiding behind Legal Professional
Privilege
– Intends seeking warrant for disclosure or declaration of “no
privilege”
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Conclusions
o LPP long established “shield”
o Protects right to access unfettered legal advice
o Protects right to understand one’s own case/evidence
without risk of self-incrimination
o Courts limit applicability to specific “narrow” instances
o Parties can take steps to improve “defensibility” of
privilege
o Regulators and others on the march to challenge it where
national security or prevention of fraud are in play
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Any Questions?
