Dispute Resolution analysis: A critical review of the Court of Appeal's landmark judgment in Salinas Pliego & Another v Astor Asset Management 3 Ltd, re-examining the consequences of 'privilege hunting' via covert intelligence operations and the resulting forfeiture of worldwide freezing orders. Written in partnership with Lauren Godfrey of Gatehouse Chambers.

Corporate entities facing criminal and related proceedings in England and Wales have three main options for avoiding prosecution—securing an out of court disposal, civil enforcement such as civil recovery orders, or deferred prosecution agreements (DPAs). This Practice Note focuses on DPAs, and the key issues facing corporate entities in managing any voluntary disclosure of material protected by legal professional privilege (LPP). For more information on DPAs generally, see Practice Notes: Deferred prosecution agreements, DPA process and DPAs in practice. For more information on out of court disposals and civil enforcement, see: Out of court disposals in criminal cases—overview and Civil enforcement as an alternative to criminal prosecution—overview. The relatively limited use of deferred prosecution agreements (DPAs) in the UK can be attributed, in part, to the historically narrow scope of corporate criminal liability (see Practice Note: DPAs entered into to date—tracker). The likelihood of a successful prosecution is a critical factor in determining whether a DPA is a viable or desirable option for both the prosecuting

This Practice Note provides guidance on the principles of privilege in Scotland. As the issue tends to arise more frequently south of the border, many of the leading cases are opinions from the jurisdiction of England and Wales. For guidance on: • specific considerations for Scottish disputes lawyers, see Practice Note: Legal professional privilege in Scottish civil litigation • specific considerations for Scottish corporate crime lawyers, see Practice Note: Legal professional privilege in Scottish criminal proceedings • 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 legal professional privilege Confidentiality and legal professional privilege in Scotland The principle of privilege is not identical under English and Scots law. In Scotland, privilege is often referred to as 'confidentiality', a term which has slightly different connotations in English law. Historically, Scots law on this subject was more akin to continental law, which uses

This Practice Note introduces the subject of privilege in arbitration proceedings and how it is dealt with under English law, some commonly used arbitration rules and the IBA rules on the Taking of Evidence in International Arbitration (IBA Rules). Privilege in arbitration The procedure for the preparation and presentation of documentary evidence in arbitration is not the same as in English litigation. In domestic arbitration between English parties under English law it is clear that English rules of evidence will apply, and what would constitute privilege in litigation, would also constitute privilege in such arbitration—see: Privilege under English law. However, in international arbitration the position is not straightforward. Arbitrators regularly deal with parties based in two or more jurisdictions, and the agreement to arbitrate may be governed by another foreign law; the dispute may be more closely connected with a different jurisdiction; arbitrators and counsel may be appointed from different legal backgrounds and the arbitration itself may be governed by institutional rules, or by none. For example, in a dispute between an English party

The following are only suggested guidelines, given that each criminal investigation will turn on its own facts. This Checklist should be read in conjunction with Practice Notes: Legal Professional Privilege in criminal proceedings and Maintaining privilege during criminal investigations. Confidentiality is key and must be maintained. If a document or communication was not confidential when it was first made, or if it loses its confidentiality, it will generally not attract Legal Professional Privilege (LPP). In order to assert privilege, careful consideration should be given to whether it is legal advice privilege or litigation privilege which is being asserted, and different considerations will apply to each. Steps to maintain legal professional privilege At the outset In the event that the client seeks advice before the criminal investigation commences: Legal advice privilege • consider whether legal advice privilege applies, ie: ◦ is the communication confidential? If yes ◦ is the communication sent by a lawyer to their client or vice versa? If yes ◦ is the communication made for the

This Practice Note considers the different types of privilege that may arise in financial remedy proceedings, including legal professional privilege and litigation privilege. It also provides guidance on the circumstances in which privilege may be waived, considerations as to disclosure to third parties, without prejudice communications and procedural issues. In financial proceedings there is an ongoing duty to provide full, honest and open disclosure. Such disclosure includes all material facts, documents and other information relevant to the issues in the case, together with any material changes after initial disclosure has been given. Solicitors owe their clients a duty to tell them in clear terms of this duty and of the possible consequences of breach of the duty which may include criminal sanctions under the Fraud Act 2006. Where a party resists disclosure on the basis of privilege, the onus is on that party to satisfy the court in that regard. The Family Procedure Rules 2010 (FPR 2010), SI 2010/2955, do not specifically refer to the issue of privilege and therefore

When is privilege relevant? Privilege is the fundamental, common law constitutional human right to withhold/resist/object to the compulsory giving of information or production of a document to another person. Questions of privilege frequently arise when disputes are brought before the Court or the Pensions Ombudsman, as privilege is one of the grounds on which a document, although disclosable, may nevertheless be excluded from the usual inspection/production process. As a rule of procedure and evidence, it acts to prevent privileged material from being given in evidence and/or to prevent a witness being required to answer questions on it. It is also a rule of substantive law, so that: • it enables a person to object beyond civil proceedings to any demand for privileged material. In non-litigious contexts questions of privilege will arise, inter alia, in relation to disclosure to regulatory or tax authorities, and under the Pensions Act 2004 (PeA 2004) by virtue of section 311 of that Act, which excludes privileged communications from duties of disclosure to the Pensions Regulator • it also enables the party entitled

This Practice Note has been written by Anne Redston, Barrister. It is her personal view; she is not authorised to speak for the Tribunals Service or the judiciary. This Practice Note: • outlines how legal professional privilege (LPP) applies in relation to tax matters • considers the interaction between LPP and HMRC’s information and inspection powers, and • discusses the extent to which LPP is available for non-lawyer tax advisers This Practice Note is only a summary and does not cover all situations, so you may need to take further advice in relation to your client’s position. For example, it does not cover privilege: • under Scots law, or • in relation to criminal proceedings such as tax fraud It also does not cover without prejudice privilege. This is discussed in Practice Note: Without prejudice communications and in Wired Orthodontics. What is LPP? In the ex parte Morgan Grenfell case, Lord Hoffman stated that LPP is ‘a fundamental human right long established in the common law.’ It is ‘not merely a rule of evidence

Legal professional privilege (LPP) is a vital consideration when deciding whether to make a suspicious activity report (SAR) to the National Crime Agency (NCA) under the relevant provisions of the Proceeds of Crime Act 2002 (POCA 2002) and Terrorism Act 2000 (TA 2000). There are three essential issues: • will making a SAR to the NCA place you in breach of your duty to maintain client confidentiality? • will it breach the client's right to LPP? • does the privileged circumstances defence apply? This is a hugely complex area of law. This Practice Note explains privilege as it applies to the AML and CTF regime only. Wider privilege issues are not covered here. You will find more general information on LPP in subtopic: Legal professional privilege. Duty of confidentiality Law firms are under a strict professional and legal duty to keep clients' affairs confidential. Protecting your client's confidential information is a fundamental feature of your duty to your client. The duty continues beyond the end of the retainer and the client's death. The

Men or women serving in the Royal Navy, the Army, the Royal Marines or the Royal Air Force, and sailors at sea, may make valid wills without complying with the formalities laid down in ordinary circumstances.

This Practice Note explains at a high level the concept of privilege between clients and their lawyers from the perspective of an in-house lawyer. It is written for banking and finance lawyers working in banks or other financial institutions. It highlights where issues of privilege may arise for in-house banking and finance lawyers and practical steps which can be taken to deal with these. Privilege is a complex topic and as such further reading is recommended. The following provide overviews of the further reading materials available: • Privilege and without prejudice communications—overview • Legal professional privilege—LPP—for in-house lawyers—overview What is privilege? The core aim of privilege is to protect the confidentiality of particular communications between clients and their lawyers or (in some circumstances, third parties). Privilege entitles a party (or their successor in title) to withhold documents from production to a third party, the court or tribunal. Note that the right belongs to the client and not to the lawyer and therefore the death of a client does not extinguish privilege; privilege passes to the successor in title.

This Practice Note considers the general principles, meaning and rationale behind privilege. It identifies the different types, including legal advice privilege and litigation privilege (known collectively as ‘legal professional privilege’ (LPP)), common interest privilege, joint privilege, public interest immunity (PII) and closed material procedures (CMP). It looks at the effect of privilege on disclosure and inspection and the difference between confidential documents and privileged material. It also considers to whom the privilege belongs, for how long it lasts and the effect of privilege on case management. Practical tips on privilege are also offered. What is privilege? In English law, privilege is a fundamental right allowing a party, or its successors in title, to withhold from production certain documents (see Court of Appeal decision in Addlesee v Dentons Europe). Where privilege exists, it does not generally displace the obligation to disclose the document's existence, but means that the relevant document will not have to be produced to other parties or the court. For further guidance, see Do you need to disclose privileged documents? below. Special protection