Q&As

I have accidentally sent the other side documents which are privileged. What should I do?

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Published on LexisPSL on 05/12/2017

The following Dispute Resolution Q&A provides comprehensive and up to date legal information covering:

  • I have accidentally sent the other side documents which are privileged. What should I do?
  • What is privilege?
  • Can privilege be lost?
  • Accidental or implied waiver of privilege
  • What practical steps should I take if I have accidentally sent privileged documents to the other side?
  • Should I seek an injunction against the recipient?
  • CPR 31.20

I have accidentally sent the other side documents which are privileged. What should I do?

What is privilege?

In English law, special protection is afforded to communications between lawyers (and, in certain circumstances, third parties) and their clients. This is on the basis that there exists, at the centre of that relationship, an obligation of confidence which the legal adviser owes his client, either in respect of confidential communications passed between them, or in relation to documents which may later form part of that party’s ‘brief’ in adversarial litigation.

This special protection, enabling a client to retain confidentiality in relation to certain communications, tends to be known as 'legal professional privilege' (LPP) and is a central principle for the administration of justice.

For more information on the general principles concerning privilege, see Practice Note: Privilege—general principles.

Can privilege be lost?

The general rule is that, once a document is privileged, it will always be privileged—see Practice Note: Privilege—general principles and in particular the section: How long does privilege last?

However, there are certain situations in which a party may no longer be able to claim LPP in respect of a document, including:

  1. where confidentiality in the document is lost, for example, where the document has entered the public domain by being referred to in a public hearing (see CPR 31.22)

  2. where privilege in the document is waived or lost, either intentionally

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