Disclosure - What are Privileged Documents?

The idea of documents being privileged is common sense when you understand it but takes a little bit of explaining. Written advice from a qualified lawyer (barrister or solicitor) is an example of a document which is privileged. The reason why the law does not require such documents to be provided to the other side is obvious: it would give a party an unfair advantage to see advice about the strengths and weaknesses of the other side's case, and if written advice had to be handed over it would lead to people only obtaining advice from a lawyer by word of mouth, and never having anything in writing, with all the risks of forgetting or misunderstanding which that would entail. Legal advice is privileged even if there is no litigation (actual or contemplated) and you are just seeking advice on what your legal rights and duties are. 

After litigation has commenced there will be things you write down not only for the purpose of getting legal advice, but simply in order to help you do what is necessary for the litigation process itself - e.g. making a list of things you need to do to comply with a court direction, or writing down your recollections of past events for eventual inclusion in a witness statement. As you would expect the law does not require you to show what you have written down to the other side, and such documents created for the purpose of litigation are also privileged. When you exchange witness statements with the other side, by sending the final signed witness statement to the other side you are "waiving" (giving up) privilege in that document but all your earlier drafts and notes remain privileged. Photos are "documents" and the same principle applies: any photos you take for the purpose of litigation are privileged so that you do not have to disclose them but of course normally you would choose to disclose them at the disclosure of documents stage (and so "waive" privilege) because you want to be able to use them at trial to help prove your case. 

The court/tribunal will not specifically order privileged documents to be disclosed (unless, of course, the other side successfully challenge the claim of privilege and the court/tribunal rules that the documents are not in fact privileged at all) but it is possible that a few documents which come within the terms of an order for documents to be disclosed will happen to be privileged so you need to be able to spot them and claim privilege or, at least, decide whether to claim privilege or whether to waive privilege in the document.

Whether a document is legally privileged depends on why it was created. If you arrange to go and see a lawyer (solicitor or barrister) to get advice about litigation concerning your land (say, about rights of way) you might decide to use your phone to take some photographs just before you see the lawyer so that you  can show the photos to the lawyer. Those photographs will be privileged because the reason why you took (created) the photos is to obtain legal advice. You might also show to the lawyer some family photographs which you took a few years ago if they happen to show, in the background, the land you want advice about. Those photographs will not be privileged because the reason why they were taken (created) was not for the obtaining of legal advice. The reason why you are showing them to the lawyer is to obtain legal advice but that is not the reason why they were originally taken (created). It is why a document was created which determines whether it is privileged or not.

If you have read the above you should now have a good idea of how to tell whether a document is privileged and you are ready to test your understanding by reading the example below and deciding which documents are privileged in the example.

EXAMPLE

Suppose that it is early February and you have just moved into a new house. You find that neighbours are parking in your drive. Your first thought is that they have probably been doing this while the house was unoccupied (the person you bought the house from only bought it himself in January and never lived in it) and that now that neighbours realise it is occupied (you are about to call round and say hello) they will stop parking in the drive.

But they carry on parking in your drive so you decide to take photos of the parked cars and keep a log for a week noting when cars are parked, and their colour and make/model and registration number. At this stage you are not thinking about any kind of legal action: you are just thinking that if you keep a log then you will be able to have a polite word with you neighbours – it may be their visitors who are parking and the log will help to establish whose cars they are. You also write to the person who used to own and live in the house up until January to ask them whether they ever had problems with people parking in the drive.

Despite your polite requests to your neighbours the problems persist and by early March you decide to seek legal advice and arrange to see a lawyer (solicitor or barrister)  in mid-March. So that you can give the lawyer up to date information about the problem you keep another log and take more photos. 

In April you start to think about litigation. When you consulted a lawyer in March your main concern was to have advice about your legal rights – was there anything in the title deeds which might give anyone a right to park on your drive, for example – but now that you have had it confirmed that there is nothing in the title deeds giving people any right to park on your drive, and with the problem continuing even though you have explained this to your neighbours, you start to think about litigation. You have not definitely decided on litigation but you are thinking about  it. Because the lawyer has advised you that it is possible for people to acquire a right to park through long usage,  you decide to write again to the person who used to own the house, this time saying that you are thinking about litigation and could they write down everything they remember about people's parking habits in the past and asking whether, if necessary, they would they be willing to be a witness in court. They write back to you at the end of April giving a chronological account of what they remember and enclosing two old photographs and a copy of a letter they wrote to their neighbours some years ago. One of the photographs shows a large number of cars parked in the drive of what is now your house (which you are told  are neighbours' cars); the other one shows a number of cars parked around a neighbour's house tightly packed apparently in a deliberate attempt to avoid parking on your drive.

At the beginning of May you are starting to think that the only way to stop neighbours parking on your drive is to start a court claim but your lawyer advises that before actually taking the step of starting the court claim  you should write a ‘letter before action' warning your neighbours that if they do not stop parking on your drive you will start litigation. The lawyer tells you what words to use in the letter but leaves you to fill in some of the details. It takes two drafts before you are satisfied with the letter which you then send to your neighbour enclosing one of the photographs you took in March.

During May you take more photographs and start another log. Your neighbours do not respond to your letter before action, so you decide to start a court claim. 

After you have started the court claim, a judge gives directions that each party must provide a disclosure list to the other by 5th October and exchange signed statements of its witnesses by 20th November. The judge also gives each party permission to engage its own expert witness land surveyor and directs that each party's expert reports should be exchanged by 20th December. You ask a lawyer to draft a witness statement for your witness (the previous owner) and the lawyer uses the detailed letter written by the witness in April to produce a first draft of the witness statement for the witness to check. There are several drafts and when the witness is satisfied that it is completely accurate, the witness signs the witness statement and that statement is among the witness statements exchanged by 20th November. Following that expert reports are exchanged.

THE ANSWERS

In the above example, the log you kept in February, the photos you took in February, and the letter you wrote in February, are not privileged documents.

The log you kept in March and the photographs you took in March, and the lawyer's written advice, are privileged documents because the main purpose in creating these documents was in connection with obtaining legal advice. The log is still privileged and most of the photos are still privileged (as is the lawyer's advice) but the photo which you sent out with your letter before action in May is no longer a privileged document: by sending it to the person you are in dispute with you have given up ('waived') privilege.

The letter you wrote to the previous owner in April, and their reply, are both privileged documents because the main purpose of writing them both was in connection with possible litigation. The two old photographs which the previous owner sent to you, however, are not privileged. This is because when they took them, years ago, that was nothing to do with the current litigation. Their purpose in sending them to you, and your purpose in obtaining them, is in connection with litigation but it is why they were initially created (taken) by their creator which determines whether they are privileged or not. Likewise the copy of the letter they sent to neighbours years ago is not privileged.

The log you made in May, and the photographs you took in May, are privileged because you created them in connection with possible litigation. The letter you wrote in May in its final form and the two drafts were privileged documents. When you sent out the letter (and photo) you waived privilege so the letter you sent out and enclosed photo are no longer privileged but the two previous drafts of the letter, which you have not sent out, remain privileged.

The signed witness statement, and previous drafts, are privileged. When the witness statement is exchanged it ceases to be privileged but previous drafts remain privileged. Likewise when you receive the report from your expert it is privileged but once it is exchanged it ceases to be privileged.

If you got the answers right you have got a good understanding of how to tell a privileged document from a non-privileged document. 

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 MP3 or MP4 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. Providing 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.


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This information page is designed to be used only by clients of John Antell who have entered into an agreement for the provision of legal services. The information in it is necessarily of a general nature and is intended to be used only in conjunction with specific advice to the individual client about the individual case. This information page should not be used by, or relied on, by anyone else. 

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This page was lasted updated in September 2017. Disclaimer