Guidance about privilege

When assessing whether a document is privileged, it is important to be clear about the type of privilege being claimed. There are two main types of legal professional privilege, which can overlap in practice:

Legal advice privilege protects communications between a client and lawyer which are created for the dominant purpose of giving or receiving legal advice. Communications from a third party will not be protected, even if created for that purpose.

Litigation privilege protects documents that are prepared for the “dominant purpose” of conducting or aiding the conduct of actual litigation or litigation which is “reasonably in prospect”. This type of privilege is not confined to communications between a client and a lawyer.

Without prejudice privilege is a different type of privilege which prevents someone from relying in proceedings on communications made in a genuine attempt to settle a dispute.

If legal proceedings have not been issued or threatened, you are probably looking at legal advice privilege. However, not everyone in your organisation will be regarded as a client for these purposes – recent cases have made it clear that it is only those “expressly charged” with seeking and receiving legal advice. Ideally therefore this authorised group of employees, including of course any in-house legal advisers, should be identified at the beginning of any internal investigation or other matter which may lead to litigation later.

For a typical investigation this authorised group of employees can readily be identified, but this can be a problem for more complex investigations which involve a number of different departments. Where you are instructing external lawyers to advise on a particular transaction or issue, they need to know which employees are authorised to instruct and communicate with them.

When communicating with external lawyers this is normally straightforward. However, the lines can become blurred when dealing with in-house counsel. Unlike in some other European jurisdictions, in England and Wales in-house counsel are regarded as lawyers for these purposes, but only when they are practising as such, rather than providing commercial advice to their organisation. Sometimes an in-house lawyer may have a dual role, both as manager and adviser. If so, it is important – when deciding whether a document sent to or from such a lawyer is or is not privileged – to look at the role the lawyer is performing on the issue in question.

It is important to realise that as a general rule the question of whether or not a document is privileged is determined at the time of its creation. That means that a document cannot normally acquire a privileged status merely because it is subsequently communicated to a lawyer. Emails and their attachments have to be considered separately when it comes to privilege.

If you copy in a lawyer to an email sent to a non-lawyer, this will not make the email privileged unless you are seeking or referring to legal advice. For this reason, internal emails sent to both an in-house lawyer and other employees may well not be privileged. Consider beginning a new email chain instead of replying or forwarding an email in order to avoid risks of this type.

Remember that any communication can be a document for the purpose of disclosure rules. This includes voicemail, WhatsApp and other messages, video and automated meeting notes. It could also include communications (prompts and responses) with an AI tool.

In relation to legal advice privilege, a distinction needs to be drawn between purely factual documents (such as statements taken in the course of a grievance investigation) and documents that are generated in order to take legal advice (for example a draft report or letter which will not be disclosed to the claimant until it has been run past a lawyer). Under the current state of the law, the statements will probably not be privileged. The draft report or letter may be privileged if it was created by one of the authorised group of employees and not shared outside that group.

In relation to litigation privilege, the key issue is likely to be whether the document has been prepared with the “dominant purpose” of conducting litigation. In this context, there is likely to be a distinction between “dual purpose” documents (such as witness statements and investigation reports prepared before the litigation commenced) and documents prepared (whether by employees or third parties) in order to defend the litigation. In general, it is best to assume that dual purpose documents will not be privileged.

There are two main things to bear in mind here: 

• If possible, avoid mixing purely factual material which may need to be disclosed in legal proceedings with material that is clearly privileged – eg, a summary of the legal advice that you have received, or a summary of issues prepared in order to seek legal guidance. 
  
  
• Take care when recording events or meetings to ensure that the note is accurate and fair. Any communication containing opinion should be fully reasoned to avoid it being misconstrued out of context at a later date.

It is best practice to restrict the circulation of privileged documents.  However the whole purpose of privilege would be lost if it was not possible to circulate legal advice both to those in the wider organisation and external advisers who need to know. But once the contents of the advice cease to be confidential, privilege will be lost. For example, confidentiality could be lost by referring to legal advice on social media, talking to the press, having a conversation on a crowded train or potentially by putting information or legal advice into a public AI system.

In most circumstances, a reasonable compromise is to make sure each privileged document is clearly marked as confidential and privileged and is either circulated in hard copy, or as an attachment to an email. In either case, the recipient should be warned not to forward or copy it to anyone else unless this is essential for the conduct of the matter.

The courts have taken a pretty strict view of when litigation is “reasonably in prospect”. In the employment context, most disciplinary or grievance proceedings could potentially result in litigation but that on its own is not enough to claim litigation privilege. Something more is required, though it is not always clear where the dividing line is crossed between litigation being possible (not enough) and likely (probably enough).

If a party believes litigation is likely and wishes to claim litigation privilege from that point, its other actions must be consistent with that position. In particular it should ensure that everyone with access to documents relating to that matter is made aware of their duty to preserve documents that may need to be disclosed in legal proceedings (this process is often referred to as implementing a “litigation hold”). A record of the precise steps taken should be kept.

Data subject access requests: While each request under the UK General Data Protection Regulation must be considered on the facts, privileged information is normally exempt from disclosure.

Freedom of information requests: For organisations that are public authorities under the Freedom of Information Act 2000 and/or the Environmental Information Regulations 2004, while privileged information will often be exempt from disclosure, each request must be considered on its facts. There is no absolute exemption for privileged material under these regimes; for example both regimes require a “public interest” test to be considered.

The key points to remember can be summarised as follows:

• Remember that a relevant communication in any form could have to be disclosed in litigation.
• Think about privilege before the communication is created: once it has been created, it will normally be too late to change its status.  
• Identify the group of people who are authorised to communicate with outside lawyers.
• Don’t mix up privileged and non-privileged material in the same document.
• Take care to ensure that notes and communications are accurate and fully reasoned and provide appropriate and relevant context.  
• Consider whether it would be better to begin a new email chain instead of replying or forwarding an email.
• Be careful about how you circulate privileged documents.
• Be careful about how you circulate, or share the content of, privileged documents.
• Remember that if information ceases to be confidential, it ceases to be privileged.
• Don’t forget about implementing a “litigation hold” when required.