In England and Wales, the principle of legal professional privilege has long been recognised by the common law. It is seen as a fundamental principle of justice, and grants a protection from disclosing evidence. It is a right that attaches to the client (not to the lawyer) and so may only be waived by the client.
The majority of English civil cases are subject to the rules of standard disclosure, which are set out by the Civil Procedure Rules 1998 (the CPR) Rule 31.6.CPR 31.6: "Standard disclosure requires a party to disclose only: (a) the documents upon which he relies; and (b) the documents which (i) adversely affect his own case; (ii) adversely affect another party's case; or (iii) support another party's case; and (c) the documents which he is required to disclose by a relevant practice direction." A party makes disclosure of a document by stating that the document exists or has existed.CPR 31.3
The right to inspect documents in English civil procedure is governed by CPR Part 31.15. Upon written notice, the party to whom a document has been disclosed has the right to inspect that document (if such inspection would be proportionate given the nature of the case) except where the party making disclosure has the right to withhold inspection.
The Proceeds of Crime Act 2002 (PoCA) requires solicitors (and accountants, insolvency practitioners, etc.) who suspect their clients of money laundering (in effect any handling or involvement with any proceeds of any crime, or monies or assets representing the proceeds of crime, can be a money laundering offence in English law) to report them to the authorities without telling the clients they have done so, subject to a maximum punishment of 5 years in jail.Proceeds of Crime Act 2002, sections 330 & 334(2) However, the Court of Appeal confirmed in 2005 that PoCA does not override legal professional privilege.Bowman v Fels
The general nature of legal professional privilege Legal professional privilege is the principal reason why inspection of documents is refused, and is regarded as a fundamental principle of justice. It is an exception to the general cards on the table outlook of the CPR. Privilege discloses a substantive right to keep privileged material confidential not only in the context of litigation, but generally.R (on the application of Morgan Grenfell & Co.) v Special Commissioner of Income Tax 1 AC 563 Privilege extends beyond a mere evidential rule, and has been regarded as a fundamental principle of justice:
It is a fundamental human right recognised by the English common law, and by the European Court of Human Rights, which has held it to be part of the right to privacy guaranteed by Article 8 of the Convention.Campbell v United Kingdom 15 EHRR 137, which stated at p. 160, para. 46: "It is clearly in the general interest that any person who wishes to consult a lawyer should be free to do so under conditions which favour full and uninhibited discussion. It is for this reason that the lawyer-client relationship is, in principle, privileged." The Court decided that the routine opening of correspondence flowing between a secure category prisoner and his solicitor by the prison authorities violated the prisoner's Article 8 rights.
Privilege is absolute, in the sense that once it is established, it may not be weighed against any other countervailing public interest factor,R v Derby Magistrates' Court, ex parte B AC 487. Lord Nicholls (at p. 512) rejected the submission that a court should carry out a balancing exercise: "In the absence of principled answers to these questions [of how in practice to balance out differing demands regarding the right to justice and the right to non-incrimination, for instance], and I can see none, there is no escaping the conclusion that the prospect of a judicial balancing exercise in this field is illusory, a veritable will-o'-the-wisp. That in itself is a sufficient reason for not departing from the established law." but may only be overridden expressly by statute.
The scope of legal professional privilege There are two forms of legal professional privilege: Legal advice privilege protects confidential communications between lawyers and their clients for the purposes of giving or obtaining legal advice. Litigation privilege protects confidential communications among lawyers, clients and third parties made for the purposes of litigation, either actual or contemplated.
General requirements for privilege To be regarded as privileged, the communications must be confidential. Communications between a client and his solicitor which the client instructed his solicitor to repeat to the other party are not privileged, because such communications are not confidential.Conlon v Conlons Ltd 2 All ER 462, CA It is necessary that the solicitor or barrister be consulted professionally and not in any other capacity.
Privilege does not extend to facts communicated by the solicitor to the client which cannot be the subject of a confidential communication, even though such facts have a relation to the client's case.Foakes v Webb 28 Ch. D 287. Kay J. drew the following example: "The fact that the solicitor was the person who signed a letter to the other side cannot be a confidential communication. Suppose the solicitor himself were asked that question in the witness box; he could not claim privilege and would be obliged to answer."
Requirements for legal advice privilege For legal advice privilege to apply, the communications in question must be between a professional legal adviser and their client with the sole or dominant purpose of giving or obtaining legal advice.Three Rivers District Council v Bank of England (No 5) 3 WLR 1274. Lord Scott (at p. 1,287) highlighted the necessity of a legal context for the communication: "If a solicitor becomes the client's 'man of business', and some solicitors do, responsible for advising the client on all matters of business, including investment policy, finance policy and other business matters, the advice may lack a relevant legal context ... In cases of doubt the judge ... should ask whether the advice related to the rights, liabilities, obligations or remedies of the client, either under private law or under public law. If it does not, then, in my opinion, legal advice privilege would not apply." The Court of Appeal judgement in Three Rivers No. 5, regarding the narrow construction of 'client' in the case of corporate clients, was not appealed and remains good, if controversial, law in England and Wales. In this case a group of employees of the corporate client had the specific delegated authority to seek and receive legal advice on behalf of the corporate client. Communications not exclusively between those specific individuals with delegated authority and the legal advisers, was not covered by legal advice privilege, even where the dominant purpose of these secondary communications was for receiving legal advice. The status of communications between individuals all with jointly delegated authority to seek and receive legal advice has yet to be tested, it may be that the "dominant purpose" test would apply to such internal communications between individuals jointly identified as the "client".
Legal advice privilege extends to advice from salaried (in-house) legal advisers employed by government departments or commercial companies as much as from barristers and solicitors in private practice.Alfred Crompton Amusement Machines Ltd v Customs and Excise Comrs (No 2) 2 QB 102. The law does not regard the position of these employed legal advisors as being different from those in private practice:
Legal advice privilege also applies to communications with foreign lawyers, where the necessary relationship of lawyer and client exists.Re Duncan, Garfield v Fay P 306. In this case, Ormrod J (as he then was) stated (at p.311): "There is nothing [in the previous case law concerning privilege] to suggest that [the judges] intended to limit the rule to legal advisers whose names appear on the roll of Solicitors of the Supreme Court or who are members of the English Bar. The basis of the privilege is just as apt to cover foreign legal advisers as English lawyers, provided only that the relationship of lawyer and client subsists between them. Any other conclusion would lead to an impossible position for if this court were required to investigate the position of such communications in foreign law, but what law governs the relationship of English client and foreign lawyer, at any rate, when no proceedings are in contemplation? There is no forum and therefore no lex fori. The nationality of the foreign lawyer is as irrelevant as his address for this purpose." It does not extend to advisors who are not legally qualified or to communications with members of other professions.Slade v Tucker 14 Ch. D 824.
All statements made at joint consultations between parties and their respective solicitors and counsel, even though made by one party to the solicitor or counsel of the other party, are privileged. So are communications made in a professional capacity for the purpose of giving or receiving professional advice, including information received by a solicitor in a professional capacity from a third party and communicated to the client.Re Sarah C Getty Trust, Getty v Getty QB 956. Here, Mervyn Davies J. stated (at 965): "I see no ground for ... allowing a solicitor to be questioned about what it is he may have received in a professional capacity from a third party. On the contrary, I think that to breach the blanket of privilege in the way suggested would erode to an unacceptable degree the wholesome protection that has been provided by the law for the reasons explained by Lord Brougham in Greenhough v Gaskell ".