Q&As

Will any privilege in a document sent by a lawyer to a witness be retained where the matter is moved to another law firm?

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Published on LexisPSL on 15/07/2016

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

  • Will any privilege in a document sent by a lawyer to a witness be retained where the matter is moved to another law firm?
  • Solicitor and client confidence
  • Waiver

Will any privilege in a document sent by a lawyer to a witness be retained where the matter is moved to another law firm?

We are not aware of any authority on this specific point. It will be necessary to consider both who the privilege belongs to and whether there has been an event which has caused a waiver of that privilege. See Practice Note: Privilege—general principles and in particular, the section titled ‘Who does privilege belong to?’. This states that privilege belongs to the client, and not to his legal adviser or agent. Further, it is only the client who can assert privilege ie it is not possible for a lawyer or agent to assert his client’s privilege unless acting on that client’s behalf. Similarly, it is not possible for a lawyer or agent to invoke privilege if the client has waived it (see R v Peterborough Justice, ex p Hicks). The issue of 'ownership' of privilege is particularly pertinent in the context of loss and waiver of privilege, as to which, see Practice Note: Privilege—loss or waiver of privilege.

Solicitor and client confidence

In the case of Kousouros v O’Halloran, 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; see

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