Perspectives On The Law of Privilege

Clyde & Co review recent English case law in relation to legal professional privilege (litigation privilege and legal advice privilege). The article deals with a range of important questions, including: when is litigation in contemplation? (referring to SFO v ENRC [2018] EWCA Civ 2006, where the Court of Appeal clawed back the high bar for claiming litigation privilege espoused in the first instance decision of Andrews J in that case); will all communications concerning the settlement or avoidance of litigation be privileged? (referring to WH Holding v E20 Stadium LLP [2018] EWCA Civ 2652, where the Court of Appeal held that privilege did not attach to communications that neither sought nor revealed the nature of legal advice or information obtained for the purposes of conducting litigation); when are documents created for the dominant purpose of conducting litigation? (referring to Sotheby’s v Mark Weiss Ltd [2018] EWHC 3179, where the Court held that litigation privilege did not apply because Sotheby’s failed to establish that the dominant purpose of the communications was for the conducting of or obtaining information in connection with litigation); whether the ‘dominant purpose test’ also apply in the context of legal advice privilege? (referring to R (on the application of Jet2.com) v Civil Aviation Authority [2018] EWHC 3364 (Admin), where the High Court held that claims for legal advice privilege are, in principle, subject to a dominant purpose test).

Other issues considered by Clyde & Co are: can a pleaded claim be based on privileged material? (referring to Winstone v MGN Limited [2019] EWHC 265 (Ch)); court inspection of documents and the impact of CPR PD 51U (referring to Sheffield United Limited v UTB LLC [2019] EWHC 914 (Chd)); and privilege in the context of a Subject Access Request (referring to Robin Rudd v John Bridle [2019] EWHC 893 (QB))

See also the comprehensive review of the law of privilege in England by Fountain Court Chambers. While the review is approached from a regulatory and investigatory context, it contains detailed and practical commentary of use to all disputes practitioners, covering the following topics:

  • The general principles
  • Legal advice privilege
  • Litigation privilege
  • Common interest privilege
  • Without prejudice privilege
  • Exceptions to privilege
  • Loss of privilege and waiver

Of particular use to practitioners is the final section dealing with practical issues in maintaining privilege, which covers the conduct of interviews with potential witnesses; ensuring that any waiver is limited; redaction of documents; substantiating a claim to privilege if challenged; and the use of independent counsel.

About Phillip Rompotis

Phillip practices as a barrister and arbitrator in Hong Kong. He has over 25 years’ litigation and arbitration experience in commercial disputes relating to construction & engineering, financial services, joint venture & shareholders agreements, technology, trusts, property and landlord & tenant. He is a Fellow of the Chartered Institute of Arbitrators, the Singapore Institute of Arbitrators, the Malaysian Institute of Arbitrators, and a member of various lists/panels of arbitrators.

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