Disclosure - What are Privileged Documents?

A written Opinion or other written advice from a barrister is covered by legal advice privilege. This means that you can keep its contents confidential and do not have to provide a copy of it to anyone. The same applies to any advice from a solicitor, and to any document created in order to obtain legal advice – such as a summary of events specifically written up so that a barrister or solicitor can advise. 

Anything created as part of the process of litigation (including when litigation was contemplated even before it formally started)  – a summary of events, or an expert report which you have commissioned (but not an expert report jointly commissioned by you and the other party), photographs taken, proofs of evidence of witnesses (i.e. handwritten or typed statements of what a witness remembers before it is put in formal witness statement form), and witness statements - is covered by litigation privilege. Some of these documents, in their final form, will eventually be sent to the other party in accordance with the court's/tribunal's timetable - e.g. witness statements will be exchanged before trial as ordered by the court/tribunal - but, until then, they are privileged and their contents can be kept confidential. 

If a copy is taken of an unprivileged document and the copy is then marked up – e.g. with questions or comments – and the marking up is done in order to obtain legal advice, or as part of the process of litigation - then the original document remains unprivileged but the marked up copy is covered by legal advice privilege and/or litigation privilege.

You can see from the above that any document created before you thought of getting legal advice cannot be covered by legal advice privilege and any document created before litigation was contemplated cannot be covered by litigation privilege. However it does not always follow that everything created after you thought of getting legal advice, or after you first contemplated litigation, is privileged - it depends on why the document was created.   

For example, suppose someone else is responsible for making your wall collapse. You will have two things on your mind:

a.) the practical arrangements you need to make to have the wall rebuilt - so you might go to three builders and ask for quotations for the rebuilding work - you would have done this even if no-one else was responsible for the collapse. 

b.) the possibility of making a legal claim against the person responsible for the collapse - so you might engage a surveyor to report on the cause of the collapse, and on the likely cost of the work to reinstate it, which is the amount of compensation you will be claiming in the litigation.

Generally the three quotations will not be privileged because, although they happen to be relevant to the litigation, your main reason for asking for them to be produced is simply to deal with the practical problem of a collapsed wall, irrespective of the question of litigation. The surveyor's report, on the other hand, will be privileged because you have commissioned it to prove your case in the litigation.

Of course each situation is different - if the construction and/or location of the wall and/or ground conditions are unusual, you might commission an expert report primarily to deal with the practical problem of rebuilding the wall, rather than because of contemplated litigation, but the above example gives the general idea of the distinction. Here is another example:

If you have an audio recording (or, indeed a video) of a meeting with the other side (held before litigation was contemplated and so not privileged) which is probative then it - i.e. the MPEG, WMV, WAV, or MP3 etc. file itself - should be disclosed, but whether a transcript - or a draft of a transcript - of the recording is privileged depends on when and why the transcript was made. If:-
  • you produced the transcript as part of preparing your case in this litigation, or 
  • you produced the transcript because you were contemplating that there might be litigation at some point, or
  • you produced the transcript so that you could show it to a barrister or solicitor as part of the process of obtaining legal advice,
the transcript will be a privileged document. On the other hand if you produced the transcript, or a draft of a transcript, of the meeting, at the time, and as a matter of course to avoid disputes, and not because litigation or legal advice was contemplated, then the transcript is not privileged

Without prejudice correspondence in which settlement offers are made and responded to is also privileged.    

Many privileged documents you will want to keep confidential because, for example, letting other parties see a written advice from a barrister would reveal to them which parts of your case your barrister thinks are the weaker points, and you do not want other parties to see that because it may give them a tactical advantage. However some privileged documents - e.g. photographs taken when litigation was contemplated - you will want to use at trial so you would provide copies of these to the other side. Proving copies means that you are “waiving privilege” so that they are no longer privileged, and allows you to then use them later on at the trial. 

If an audio recording is disclosed and its contents need to be referred to at the trial, (and assuming no suitable transcript was made before litigation was contemplated) it is usual for the parties, at some stage well before the trial (e.g. before the exchange-of-witness-statements stage), to agree the wording of a transcript of all or part of the recording to be included in the trial bundle, because reading a transcript at trial is much easier than listening to an audio file. At the time of Disclsoure of Documents you may only have made a rough transcript (and not had time to play the difficult parts multiple times to try to get the transcript as accurate as you can) and, if so, you do not have to provide the other side with a copy of that recently made rough transcript if it is privileged. But it you happen to be further advanced and have already been able to make an accurate transcript of the entire recording (or of those parts which are relevant) and check it, you can choose to waive privilege and provide a copy of that transcript as well as the audio file itself.

The same principle applies if a document is disclosed which is difficult to read (e.g. because it is handwritten). To assist the court/tribunal, normally the parties, at some stage well before the trial (e.g. before the exchange of witness statements stage) will agree the wording of a typed transcript to be included in the trial bundle (inserted just after a copy of the difficult-to-read document which should also be included in the trial bundle). At the time of Disclosure of Documents you may only have made a rough transcript (and not had time to concentrate on the parts which are most difficult to read so that you can get the transcript as accurate as you can) and, if so, you do not have to provide the other side with a copy of that recently made rough transcript, if it is privileged, when you disclose the difficult-to-read document. But it you happen to be further advanced and have already been able to make an accurate transcript of the document and check it, you can choose to waive privilege and provide a copy of the transcript at the same time as you provide a copy of the difficult-to-read document itself.

As well as documents covered by legal advice privilege or litigation privilege, and without prejudice correspondence, there are some other cases where it may be possible to claim that a document is privileged – for example documents which might expose a party to the risk of criminal prosecution, confidential documents relating to an individual to which Article 8 (respect for private and family life) of the European Convention on Human Rights might apply, or documents which would injure the public interest if produced, are in some cases privileged. The legal rules governing these other types of “privilege” are particularly complex and if you think that this might apply then it is particularly important to seek advice from a qualified lawyer.


Disclaimer

The above explanation of the law as it relates to disclosure of documents is only an overview and in order to be reasonably concise I have had to leave some details out - details which are likely to affect what the law would say about your own situation. So please do not rely on the above but contact me for advice.

This page was lasted updated in December 2016. Disclaimer