Privilege in DPA negotiations
Produced in partnership with Amanda Raad, Arla Kerr, Matthew Burn and Chris Stott
Privilege in DPA negotiations

The following Corporate Crime guidance note Produced in partnership with Amanda Raad, Arla Kerr, Matthew Burn and Chris Stott provides comprehensive and up to date legal information covering:

  • Privilege in DPA negotiations
  • Privilege in internal investigations giving rise to Deferred Prosecution Agreements (DPAs)
  • Privilege when negotiating DPAs
  • Settling disputes over privilege in DPA negotiations and the use of independent counsel
  • Waiver of privilege in DPA negotiations
  • The court’s approach to privilege in DPAs—a question of co-operation
  • Privilege post resolution of a DPA
  • Analogous rules on privilege under the Serious Organised Crime and Police Act 2005 Guidance
  • Analogous rules on privilege under the Competition and Markets Authority Guidance
  • How should a practitioner approach privilege in DPA negotiations?

Legal professional privilege (LPP) is recognised as a fundamental right by the courts in England and Wales. At its heart is an acknowledgement of the need for a client to be able to discuss matters openly and fully with their lawyers in order to be able to obtain legal advice without fear that the information will be disclosed. The effect of a document attracting LPP is that it is immune from disclosure to any other party.

For more information, see Practice Notes: Legal Professional Privilege in criminal proceedings and Maintaining privilege during criminal investigations.

In England and Wales, LPP is sub-divided into two different categories of privilege: legal advice privilege and litigation privilege. Broadly speaking:

  1. legal advice privilege applies to confidential communications between a lawyer and their client for the purpose of giving or obtaining legal advice:

    ‘all communications between a solicitor and his client relating to a transaction in which the solicitor has been instructed for the purpose of obtaining legal advice will be privileged, notwithstanding that they do not contain advice on matters of law or construction, provided that they are directly related to the performance by the solicitor of his professional duty as legal adviser of his client’

  2. litigation privilege requires litigation to be in progress or contemplation, and for the protected communication to have been made for the sole or