This Practice Note provides an overview of legal professional privilege (LPP) in civil litigation in Scottish civil litigation. This Practice Note should be read in conjunction with Practice Note: Privilege in Scotland—general principles, which provides an overview of the two principal types of legal professional privilege: legal advice privilege (LAP) and litigation privilege (LP) and touches on without prejudice privilege, waiver of privilege and common interest privilege. For guidance on the position in England and Wales, see: Privilege and without prejudice communications—overview and Practice Note: Privilege—general principles which, as well as giving an overview of this area, link through to more detailed guidance on various aspects of LPP. Key: • FOI—freedom of information • LAP—legal advice privilege • LP—litigation privilege • LPP—legal professional privilege Accessing privileged material in Scottish civil litigation In Scotland, there are a number of vehicles through which otherwise privileged documents or communications can be recovered either in the litigation itself or outwith the court process, including: • section 1 of the Administration

This Practice Note provides guidance on the principles of legal professional privilege as they apply in criminal investigations and prosecutions in Scotland. This Practice Note should be read in conjunction with Practice Note: Privilege in Scotland—general principles, which provides an overview of the two principal types of legal professional privilege: legal advice privilege and litigation privilege and touches on waiver of privilege and common interest privilege. For guidance on the position in England and Wales, see Practice Note: Legal professional privilege in criminal proceedings. Legal advice privilege—who falls within definition of ‘lawyer’ in COPFS The case of Whitehouse v The Lord Advocate concerned a claim for damages arising out of an action under the Proceeds of Crime Act 2002 (POCA 2002) raised by the Crown. A restraint order was sought and granted under POCA 2002 but it was subsequently recalled without confiscation action. In preparation for the action, the pursuers sought and obtained an order for recovery of documents from the defender relating to the allegations made

This Practice Note considers legal professional privilege (LPP), which is made up of legal advice privilege and litigation privilege. It considers the various criteria for both types of LPP including confidentiality of communications, the dominant purpose and legal context of the communications over which privilege is being asserted and to whom the communication has been copied. The Practice Note looks at the meaning, for the purposes of asserting privilege, of client, legal adviser, legal advice and anticipated litigation. It considers various exceptions to privilege including the iniquity exception (in circumstances of fraud or crime), where statute overrides privilege. The position on copy documents, collated, selected and extracted documents and translations is also considered. Finally, practical tips are offered. Legal professional privilege (LPP) (which is often referred to simply as ‘privilege’ in this Practice Note) is an umbrella term encompassing legal advice privilege and litigation privilege. For information on the general principles associated with privilege including the rationale for those principles and the advantage of being able to assert privilege, see Practice Note: Privilege—general

The aim of this Practice Note is to provide some guidance on the principles of legal professional privilege (LPP) as they apply in criminal investigations and prosecutions. For information and guidance on how to maintain LPP for a client during the course of a criminal investigation, see Practice Note: Maintaining privilege during criminal investigations. What is privilege? Privilege can be divided into four main headings: • legal professional privilege • common/joint interest privilege (although strictly speaking this is a subset of legal professional privilege) • without prejudice privilege • privilege against self-incrimination This Practice Note will deal only with LPP in a criminal context. For more general information about legal professional privilege, see Practice Note: Legal professional privilege in civil proceedings. For information on other types of privilege, see Practice Notes: Privilege—joint and common interest privilege, Privilege—solicitor and client confidence, Privilege against self-incrimination and Without prejudice communications. Legal professional privilege (LPP) LPP is recognised by the courts as a fundamental

This Practice Note considers some common practical issues which arise in relation to legal professional privilege (LPP) in the context of corporate and personal insolvency processes and insolvency proceedings. For information on the general principles associated with privilege including the rationale for those principles, see Practice Note: Privilege—general principles. For information on LPP generally including the various criteria for both legal advice privilege and litigation privilege and the exceptions to privilege, see Practice Note: Legal professional privilege in civil proceedings. General principles—corporate insolvency In a corporate context, the privilege in a document vests in the company. An insolvency office-holder appointed over the company, who stands in the shoes of the company, is accordingly entitled to recover and review documents which exist from the period prior to the company entering the insolvency process. In respect of any such documents recovered, the office-holder may maintain or waive any claim to privilege which the company could formerly have maintained against third parties. For information on waiver of privilege by the office-holder, see ‘Waiver

This Checklist discusses privilege issues to consider when interviewing witnesses or seeking background to a dispute including when legal professional privilege (LPP) may apply. It provides guidance on witness interviews, including how to make interview notes in order to preserve privilege, and carrying out investigations such as in the context of a Serious Fraud Office (SFO) investigation. Privilege When interviewing potential witnesses or seeking background to a dispute, the notes made by the interviewer may be subject to LPP, in the form of: • legal advice privilege—this applies to confidential communications between legal advisers and their clients which take place for the purpose of giving or receiving ‘legal advice as to what should prudently and sensibly be done in the relevant legal context’ (Balabel, Taylor LJ) • litigation privilege—this applies to confidential communications between (1) legal advisers or their clients and (2) third parties, where the sole or dominant purpose of the communication relates to existing or contemplated litigation. Communications protected by legal advice privilege are not restricted by the scope of litigation

Information Law analysis: Confidentiality is a pre-requisite to a claim for privilege and it was thought that the relevant test was whether there was a ‘reasonable expectation of privacy’. That is a mistake: the court held that the proper focus should instead be on the traditional test developed in the context of breach of confidence cases. In addition to that clarification, the case is of particular interest as it addresses a problem that arises frequently: the issue of privilege in the context of work emails on corporate servers. The judgment provides a helpful summary of the relevant principles and then applies them by reference to factors that are present in companies across the country (and the world). Written by Tim Benham-Mirando, barrister at Serle Court (and counsel for the fifth defendant in this case).

This Practice Note lists cases decided in and since 2020 in the field of legal professional privilege in England and Wales. It includes cases concerning legal advice and litigation privilege, as well as joint and common interest privilege, exceptions to privilege and the waiver of privilege. This Practice Note does not cover cases concerning ‘without prejudice’ communications and offers. Legal advice privilege Name of case Case reference Court/judge Comments Uber London Ltd v White [2026] EWHC 1610 (Comm) Commercial Court, Birt J This judgment deals with the defendants’ (applicants) application for disclosure of correspondence involving the potential funder of the claims while it was investigating the potential claims. This application was made against the claimants (respondents). An application for disclosure was also made in the alternative under CPR 31.17.The underlying claim concerned allegations that the defendants fraudulently obtained their private hire licence through unlawful means, with the preliminary issue being whether the claimants discovered, or could reasonably have discovered, the alleged fraud before June 2018.In this case, the claimants opposed the

This Legal professional privilege—top ten tips document highlights key messages on how to attract and then protect legal professional privilege. For further details on all these tips, as well as more tips and information, see our [insert, eg Legal professional privilege—quick guide for staff]. 1. Legal professional privilege protects the organisation’s confidential legal advice and communications from third parties,

This Practice Note we will work through the five key stages of legal project management (LPM) using an example based on an in-house legal team at a multinational drinks manufacturer. This may, at first sight, appear long winded, but the beauty of LPM is that once you set up the process and get the tools in place, everyone can follow the same process and make use of the same tools in the future, scaling up or down for different sized projects. Stage 1: Defining the scope This stage is where you need to take the time to fully understand the scope of the project and identify who all the stakeholders are. You will find more detail on this in Practice Note: Project management: Project lifecycle and set-up. Example: Let’s say that the marketing team approach you as they want to launch a limited-edition flavour and have partnered with a celebrity for promotion. The legal scope could include things like reviewing endorsement agreements, advising on competition law and/or advertising rules,

UK databases—scope, Brexit and assimilated law The law protecting databases in the UK was significantly influenced by EU legislative initiatives, particularly in the two decades preceding Brexit. Following the UK’s exit from the EU, EU law introduced, or implemented, after 31 December 2020 (IP completion day) is not binding in the UK. For pre-existing EU legislation, a new category of domestic law, retained EU law, was introduced under the European Union (Withdrawal) Act 2018 (EU(W)A 2018), and case law relating to any such retained EU law prior to the end of 2020 continued to have effect in the UK. The European Union (Withdrawal Agreement) Act 2020 made several changes to EU(W)A 2018 and introduced an implementation period beginning on 31 December 2020. During the implementation period, the legal position was frozen, save where actively amended by UK Parliament. UK courts could have regard to, but were no longer bound by, principles laid down or decisions made by the EU courts after this date. For more information, see Practice

THIS PRACTICE NOTE APPLIES TO SCHEMES THAT WERE CONTRACTED-OUT SALARY-RELATED (COSR) SCHEMES BEFORE 6 APRIL 2016. On 6 April 2016, contracting-out on a salary-related basis (also known as DB contracting-out) ceased to exist. Schemes that were contracted-out salary-related (COSR) schemes immediately before 6 April 2016 automatically ceased to be contracted-out with effect from that date. This Practice Note covers the statutory requirements applicable on and from 6 April 2016 to schemes that were COSR schemes before that date. For more information on the abolition of DB contracting-out, see Practice Note: Abolition of DB contracting-out—an introduction [Archived]. For more information generally on the meaning of contracting-out, see Practice Note: What does ‘contracting-out’ mean for pension lawyers? Legal framework for former COSR schemes The various contracting-out requirements applicable to former COSR schemes are mainly set out in: • Part III of the Pension Schemes Act 1993 (PSA 1993) • the Occupational Pension Schemes (Schemes that were Contracted-out) (No 2) Regulations 2015, SI 2015/1677 (the New Contracting-out Regs). These regulations