A recent Court of Appeal decision in Curless v Shell International Ltd brings into focus the oft-misunderstood question of legal professional privilege: what it means exactly and, importantly, where the boundaries are drawn.

For many people outside the legal profession, the term ‘legal privilege’ means very little, if anything at all. However, even within the profession, although most will be familiar with the term, few would be confident that they fully understood the scope of the concept.

Legal professional privilege, in principle, is the right of a party to exclude from legal proceedings evidence which they would otherwise be obliged to provide to another party or to the court. The right extends only to qualifying evidence in two sets of circumstances: legal advice privilege (LAP) and litigation privilege (LP).

LAP covers communications (whether oral or in writing) between a client and his or her lawyer. To attract LAP, the communication must have been made in confidence and for the purpose of obtaining/imparting legal advice. LP on the other hand covers communications between a client, lawyer or third party where legal proceedings are underway or contemplated and where the communication is for the purpose of such litigation.

It is important to note, however, that in either case, the term ‘lawyer’ means a qualified, professionally regulated legal adviser, including a solicitor, barrister or other lawyer working within an authorised and regulated legal practice. Notably, this does not include advice given by legal advisers or consultants working in unregulated legal support/advisory organisations. So, employers who choose to retain unregulated advisers to handle their employment disputes should be aware that neither LAP nor LP are likely to cover communications with such advisers about strategy, tactics, drafts of legal documents such as witness statements etc.

Even where regulated lawyers are involved, the right to claim privilege is not entirely unfettered as the Shell case highlights. In that case, both sides were (and continue to be) professionally represented and so the question turned upon whether one party could claim privilege in respect of communications which might prove detrimental to their case if included in the evidence before an employment tribunal. At stake, was whether a particular communication was for the purpose of receiving legal advice and, if so, whether such advice tended to suggest that the recipient “act in an underhand or iniquitous way”. This is a question of fact in each case, as illustrated by the differing conclusions as between the Employment Appeal Tribunal which ruled that communication did contain advice to act in an underhand way and hence that privilege was lost only for the opposite conclusion to be reached in the Court of Appeal which overturned the EAT’s decision.

Accordingly, employers who suspect the escalation of a work place dispute into contested litigation should proceed with extreme caution in regards to their documented communications, especially where advice is sought from unregulated legal advisers.

This blog was written by:  Mark Higgins

DISCLAIMER: Please note that this post sets out the general position under the general law. It should not be acted upon in any specific circumstances without taking specific legal advice as to those circumstances. Also, it should not be relied upon, acted upon or treated as a substitute for specific advice relevant to particular circumstances. If you do require specific advice please contact us for assistance.

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