“Privilege” over documents or communications is a powerful right and ensures the confidentiality of information in specific circumstances. The principle of privilege is well established in Guernsey.
Legal professional privilege entitles parties to withhold evidence which they would normally be obliged to disclose during the course of litigation. There are two main types of legal professional privilege:
- Legal advice privilege - this covers confidential information exchanged between lawyers and their clients for the purpose of legal advice; and
- Litigation privilege - this covers any communications between lawyers, their clients and third parties where the dominant purpose of that communication is anticipated or current litigation.
One or both types of legal professional privilege may apply at any time.
Documents can also be protected by without prejudice privilege if they are prepared with the intention of trying to reach a settlement in a matter. Whilst still a developing area of law, in certain circumstances common interest privilege may also be available where privileged materials are shared between those with the same interests in a particular matter.
Legal advice privilege
The purpose of legal advice privilege is to enable parties to freely discuss matters openly with their lawyers when seeking legal advice. This also ensures that advice provided by lawyers remains confidential to those parties. Legal advice privilege applies both to the advice provided and to the instructions provided by the client for the purpose of obtaining that advice. It does not apply to communications with third parties.
Legal advice privilege should automatically apply in the correct circumstances. Key factors include:
- The communication or information must be transmitted between the lawyers and their clients;
- The communication or information must be for the purpose of obtaining or receiving legal advice. It will not cover more general business advice; and
- The information should be confidential.
Litigation privilege is similar to legal advice privilege but it applies specifically in the context of litigation. It covers communications between lawyers and their clients, or the lawyer or client and a third party where the client is preparing for potential litigation.
In order for litigation privilege to apply, the following factors are influential:
- The communication or information should be confidential;
- The sole or dominant purpose of the communication or information is actual or prospective litigation; and
- The litigation needs to either be ongoing or there is a real prospect of it happening, rather than speculative discussion.
Legal advice privilege and litigation privilege apply automatically in the correct circumstances. However, in order to avoid any debate over the applicability of privilege it is helpful to mark relevant documents or communications as “confidential and subject to legal professional privilege”.
The law on legal advice privilege has been subject to some recent developments in the English courts in the context of regulatory investigations, and the Guernsey Courts are likely to take account of this guidance. This has cast some doubt over whether communications between parties and their legal advisors in the context of internal investigations are protected by privilege. Whether privilege will apply will turn on the facts and circumstances, but we would strongly recommend that this concern is addressed at the start of preparation for any regulatory investigation. That way it should be possible to ensure that the investigation is structured so that information can be protected by privilege from the outset, rather than seeking to apply privilege at a later stage.
Without prejudice privilege
Separately from legal professional privilege, without prejudice privilege applies to communications made in a genuine attempt to settle a dispute. It operates to prevent those communications being put before the court, and can be used to put forward arguments or make concessions outside of the formal position in the context of negotiations. There is no requirement for these communications to involve a lawyer and without prejudice privilege can apply to communications between the parties directly.
It is sensible to mark communications of this nature “without prejudice”. Alternatively, communications can be expressed to be “without prejudice save as to costs” which means the communications cannot be disclosed until after the decision of the court. Such communications can then be examined by the judge when deciding who should bear the costs of a particular matter. This can be a powerful tool when properly utilised.