What is the difference between a privileged document and a confidential document

Private Client. Insurance Litigation. Immigration - Overview. Employment - Overview. Intellectual Property. Legal professional privilege under English law allows parties to seek legal advice and investigate the merits of their case without being forced to disclose confidential and sensitive documents in legal proceedings or to third parties. There are complex issues surrounding when this right to privilege applies, and it is not always the case that communications with lawyers and third party advisers are protected.

It is easy to lose the protection of privilege by waiver and so care needs to be taken to preserve confidentiality. There are two distinct types of legal professional privilege that can arise; legal advice privilege and litigation privilege.

Legal advice privilege is broader than litigation privilege and allows clients to discuss their legal position with their lawyers in the knowledge that their communications will remain confidential, even when there is no litigation in prospect. It does not apply to commercial or strategic advice. Only those at the client engaged in the seeking and receiving of advice from external lawyers are entitled to legal advice privilege.

Internal communications made by other employees that contributed to the seeking of that advice are not protected. Provided the communication is confidential when created, it will remain confidential. As with litigation privilege, the privilege can be lost by circulating privileged material to third parties and once lost, can lead to the loss of privilege in related material.

Litigation privilege is more limited in scope and is designed to allow parties to investigate potential disputes without the worry that those investigations could be disclosed to the other side. Those conditions are that:. The communications must have been made for the sole or dominant purpose of conducting that litigation; and. Documents regarded as communications for the purposes of privilege include anything that is recorded, including emails, letters, voicemails, tape recordings and documents on a computer, as well as other written documents, including those written in manuscript.

Confidential documents that have been created to allow a party to give or seek legal advice may also be protected by litigation privilege, even if they are not physically transmitted to another party.

Litigation privilege will only apply to documentation created in ongoing litigation or where litigation is reasonably contemplated. Litigation privilege Litigation privilege is more limited in scope and is designed to allow parties to investigate potential disputes without the worry that those investigations could be disclosed to the other side. Those conditions are that: 1.

The document is a communication between: lawyer and client lawyer and a third party e. Litigation must be in progress or in contemplation; 3. The communications must have been made for the sole or dominant purpose of conducting that litigation; and 4. The litigation must be adversarial.

What documents are communications? Documents regarded as communications for the purposes of privilege include anything that is recorded, including emails, letters, voicemails, tape recordings and documents on a computer, as well as other written documents, including those written in manuscript. Confidential documents that have been created to allow a party to give or seek legal advice may also be protected by litigation privilege, even if they are not physically transmitted to another party.

The litigation must be ongoing or in contemplation Litigation privilege will only apply to documentation created in ongoing litigation or where litigation is reasonably contemplated. However, merely marking a document in this way does not guarantee privilege and will not protect against waiver of privilege if there is loss of confidentiality.

Advice taken by a client from an expert in the absence of litigation is not privileged. Dominant purpose Litigation privilege protects communications so long as the documents were brought into existence for the dominant purpose of litigation. Statements within a document remarking that it was prepared to enable the lawyer to advise on the litigation, or evidence put to the Court that the document was prepared for a particular purpose, will not necessarily lead the Court to find that the document was created for the dominant purpose of litigation.

Adversarial For a document to qualify for litigation privilege, the proceedings to which the document relates must be adversarial in nature. This means that litigation privilege can be claimed in proceedings where a Court or tribunal will make an order as the outcome. The definition of an adversarial matter is still an issue of great contention. Reports produced in matters which are merely fact gathering exercises, such as a banking enquiry or any type of administrative tribunal, will not usually be subject to litigation privilege.

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Number of of Fee Earners. As a practical measure, labelling can help to maintain privilege—at least by helping to prevent inadvertent wider circulation of privileged material. It is prudent to avoid, as far as possible, the transmission of particularly sensitive information by email, as it is more difficult to control the limits of distribution.

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Thought leadership Publications Privilege under English law. Client learning Whether a document is privileged is a question of substance rather than form: simply marking documents as privileged and confidential, or forwarding them to a lawyer, cannot make a non-privileged document into a privileged one. Legal advice privilege Legal advice privilege protects written or oral confidential communications between a lawyer and a client for the purpose of giving or receiving legal advice.

There must be a lawyer present There must be a lawyer in the communication for legal advice privilege to apply. There must be a communication As a general rule, for legal advice privilege to apply under English law, there must be a communication between a lawyer and a client, or a document which reflects such a communication. Not all preparatory material is privileged Preparatory material of the client which is not communicated to the lawyer may not be privileged. Litigation privilege Litigation privilege protects confidential written or oral communications between client or lawyer on the one hand and third parties on the other , or other documents created by or on behalf of the client or his lawyer, which come into existence once litigation is in contemplation or has commenced and which is for the dominant purpose of use in the litigation.

There need not be a lawyer present Litigation privilege is wider than legal advice privilege and can protect communications with and documents prepared by accountants and other non-legal advisers in preparation for arbitration.