Q&As

Is there any authority on whether legal advice privilege is lost where that privileged information is disclosed by a law firm without their client’s consent?

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Published on LexisPSL on 03/02/2017

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

  • Is there any authority on whether legal advice privilege is lost where that privileged information is disclosed by a law firm without their client’s consent?
  • Legal professional privilege
  • Who does privilege belong to?
  • Waiver of privilege
  • Inadvertent inspection

Is there any authority on whether legal advice privilege is lost where that privileged information is disclosed by a law firm without their client’s consent?

Legal professional privilege

The special protection that allows a client to retain confidentiality in certain communications with their legal advisers tends to be known as ‘legal professional privilege’ (LPP), which is an umbrella term encompassing both legal advice privilege and litigation privilege.

When considering LPP, it is important to keep in mind the distinction between disclosure and inspection. Disclosure is the term given to the process where parties offer up ‘documents’ in their control which are material to an issue (or issues) in dispute see Practice Note: Disclosure—introduction. In comparison, ‘inspection’ occurs when a party physically views (or receives copies of) documents that have been listed or ‘disclosed’. See Practice Note: Disclosure—inspection.

It is also important to note that a party to whom a document has been disclosed may generally only use that document for the purpose of the proceedings in which it was disclosed (CPR 31.22(1)). This is often referred to as the ‘collateral purpose rule’ (although there are some exceptions). See Practice Note: Collateral use of documents in civil proceedings under the heading 'Collateral use of documents in civil proceedings—Rule 31.22—the collateral purpose rule' for more information.

Who does privilege belong to?

Where LPP exists, it belongs to the client (not the legal

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