Q&As

What types of privilege might apply to a letter from the other party’s expert which was received in support of pre-action correspondence, where that expert’s letter was neither headed confidential nor without prejudice?

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Published on LexisPSL on 14/09/2016

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

  • What types of privilege might apply to a letter from the other party’s expert which was received in support of pre-action correspondence, where that expert’s letter was neither headed confidential nor without prejudice?
  • Types of privilege
  • Further reading

What types of privilege might apply to a letter from the other party’s expert which was received in support of pre-action correspondence, where that expert’s letter was neither headed confidential nor without prejudice?

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. See Practice Note: Privilege—general principles.

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.

LPP is an umbrella term which encompasses legal advice privilege and litigation privilege.

The key principle is that a person must be able to consult their lawyer freely, assured that the confidence in any information provided will be maintained and protected.

Types of privilege

Privilege can be asserted over documents which fall into two different categories:

LPP, ie:

  1. legal advice privilege—see Practice Note: Legal professional privilege in civil proceedings

  2. litigation privilege—see Practice Note: Legal professional privilege in civil proceedings

Other forms of privilege, including:

  1. common interest privilege—see Practice Note: Privilege—joint

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