Q&As

Could without prejudice documents in civil proceedings be seized and used by regulators in regulatory or criminal proceedings (using their powers of compulsion) or will such documents be protected by privilege?

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Produced in partnership with Áine Kervick of Kingsley Napley
Published on LexisPSL on 20/02/2018

The following Dispute Resolution Q&A produced in partnership with Áine Kervick of Kingsley Napley provides comprehensive and up to date legal information covering:

  • Could without prejudice documents in civil proceedings be seized and used by regulators in regulatory or criminal proceedings (using their powers of compulsion) or will such documents be protected by privilege?

Could without prejudice documents in civil proceedings be seized and used by regulators in regulatory or criminal proceedings (using their powers of compulsion) or will such documents be protected by privilege?

Without prejudice material does not fall under the legal professional privilege (LPP) umbrella. It is its own form of privilege rooted in public policy considerations. According to some sources, it is not a fundamental right, unlike LPP, and therefore, it is not immune from statutory powers of information gathering.

The question of whether without prejudice documents in civil proceedings can be seized and used by regulators in regulatory or criminal proceedings (using their powers of compulsion) is not one which has been tested in the courts and is not one which arises often in practice. It is arguable that such material cannot be compelled. However, some sources are of the view that such an argument would not be successful.

For example, in respect of section 10 of the Police and Criminal Evidence Act 1984 (PACE 1984), there is an exception against disclosure of items subject to ‘legal privilege’. This ‘legal privilege’ was held by the House of Lords in R v Central Criminal Court, ex p Francis & Francis (a firm) to mean ‘common law legal professional privilege’. As there is no direct court authority on this point, some sources state that without prejudice materials are

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