Privilege—general principles

The following Dispute Resolution practice note provides comprehensive and up to date legal information covering:

  • Privilege—general principles
  • What is privilege?
  • Types of privilege
  • Do you need to disclose privileged documents?
  • Withholding inspection on grounds of privilege—Rule 31.3(1)(b)
  • Redacting or masking documents
  • To whom does privilege belong?
  • Successors in title
  • How long does privilege last?
  • Privilege and case management
  • More...

Privilege—general principles

This Practice Note considers the general principles, meaning and rationale behind privilege. It identifies the different types of privilege, including legal advice privilege and litigation privilege (known collectively as ‘legal professional privilege’ (LPP)), without prejudice communications, common interest privilege, joint privilege, public interest immunity (PII) and closed material procedures (CMP).

It looks at the effect of privilege on disclosure and inspection and the difference between confidential documents and privileged material. It also considers who the privilege belongs to, how long it lasts for and the effect of privilege on case management.

Practical tips on privilege are also offered.

What is privilege?

In English law, privilege is a fundamental right allowing a party, or its successors in title, to withhold from production certain documents (see Court of Appeal decision in Addlesee v Dentons Europe, para [90]). Where privilege exists, it does not generally displace the obligation to disclose the document's existence, it merely means the relevant document will not generally be produced to the other parties, the court and/or third parties, as appropriate. For further guidance, see Do you need to disclose privileged documents? below.

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,

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