Privilege—solicitor and client confidence
Privilege—solicitor and client confidence

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

  • Privilege—solicitor and client confidence
  • Who does privilege belong to in any subsequent litigation?
  • Can a client prevent their former solicitor acting for another party on grounds of privilege or confidentiality?

This Practice Note looks at privilege and confidential information in the context of a client-solicitor relationship where that solicitor-client relationship no longer exists. In particular, it looks at who the privilege belongs to (Derby) generally, who it belongs to in any subsequent litigation (Kousouros) and whether a former client can prevent their former solicitor from acting for another party on grounds of privilege or breach of confidence (Singla).

Who does privilege belong to in any subsequent litigation?

Privilege generally belongs to the client (rather than the legal adviser)—see further: Privilege—general principles—Who does privilege belong to?

Further, once a communication is privileged, it will generally always be privileged—see further: Privilege—general principles—How long does privilege last?

The point was illustrated in Kousouros, where it was held that a party retained the benefit of legal advice privilege that had been disclosed to an opponent by a former solicitor, even after the solicitor’s retainer had come to an end. The underlying dispute was between a brother and sister who had been allocated equal shares in their father’s estate under his will. The brother sought declaratory relief to the effect that he was solely entitled to a London property which, he said, fell outwith the estate, on the basis of an oral agreement before his father’s death.

Initially, the solicitor concerned had been retained exclusively by the sister