IMPORTANT This information page is designed to be used 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. If you are not currently a client of John Antell you may want to obtain a quotation for advice about your case in general and about your disclosure obligations.
The idea of documents being privileged is common sense when you understand it but takes a little bit of explaining. An email or letter from you to a qualified lawyer (barrister or solicitor) asking for advice, and the written legal advice you receive, are examples of documents which are privileged. The reason why the law does not require such documents to be provided to the other side (at the disclosure of documents stage of litigation) 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.
Broadly speaking documents you create after litigation has commenced are privileged.
The main practical consequence of a document being privileged is that you don't have to show it to the other side at the disclosure of documents stage of litigation because you can claim privilege. You can only use at the final hearing (trial) documents you have disclosed so you might choose to waive (abandon) your privilege for a particular document - e.g. a photo you have taken after litigation has commenced - by sending a copy to the other side anyway, but that would be your choice. (Of course you would not, except in the most unusual circumstances, ever send a copy of legal advice you have received to the other side - legal advice will inform what stance you take in the litigation - such as in your statement of case and in pre-action correspondence - but the legal advice itself would not be sent).
As a general rule of thumb anything created before litigation has commenced is not privileged and anything created after litigation has commenced is privileged but, in fact, it is a little more complicated than that. The actual legal test of whether a document is covered by litigation privilege (as it is called) is whether the main reason why the document was created was because there is litigation or because you were contemplating starting litigation, or anticipating that the other side might commence litigation. "Contemplating" or "anticipating" does not necessarily mean that you think litigation is likely but it is more than just thinking it a mere possibility. So if you take a photo because you are seriously thinking of commencing litigation (or because you anticipate that someone else is going to commence litigation against you) that photo will be privileged even if it is several months before litigation actually commences. If you have commenced litigation against someone who has damaged your wall, you might instruct a surveyor to write a report on what damage has been caused to the wall and how much it is likely to cost to repair, so that you can, if the tribunal allows, use that report at the final hearing (or perhaps you may just use it to inform your investigations connected with the litigation without actually deploying the report itself it in the litigation). That report will be privileged (unless and until you decide to use it in the litigation and send it to the other side thus "waiving" privilege) because the surveyor is writing it (creating it) as a result of you contemplating or anticipating litigation. But if you ask a builder to give you a written quotation for repairing the wall simply because the wall needs repairing, without thought of any litigation, the quotation will not be privileged. So although most documents created after litigation has commenced are privileged it is actually the reason why the creator of a document created it which determines whether it is privileged or not.
Sometimes people seek legal advice just so they know what their rights and duties are, without any litigation being in sight, and emails/letters seeking that advice, and the written advice itself, are also privileged. This is known as legal advice privilege.
After litigation has commenced (or when you are contemplating it) 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 tribunal 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 an earlier draft, before you did corrections, remains 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 (or some of them - the clearest ones) at the disclosure of documents stage (and so "waive" privilege) because you want to be able to use them at the final hearing (trial) to help prove your case.
A court or other tribunal will not specifically order privileged documents to be disclosed (unless, of course, the other side successfully challenge the claim of privilege and the tribunal rules that the documents are not in fact privileged after all) but the tribunal will specify groups or types of documents to be disclosed and 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, some feature of the land which might be relevant to what you are seeking 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 now 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.
AN 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 visitors 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 might be 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 asking whether, if necessary, they would they be willing to give a witness statement. They write back to you at the end of April saying they would be happy to give a witness statement 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; 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.
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 enclosed with their reply, 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 the 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 statements, and previous drafts, are privileged. When the witness statements are exchanged they cease 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.
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 or anticipated 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/anticipated 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 (e.g. MP3 file) or, indeed, a video (e.g. MP4 file) of a meeting with the other side (held before litigation was contemplated/anticipated and so not privileged) to be disclosed, then 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 /anticipating litigation, 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, just after the meeting as a matter of course as good business practice, and not because litigation was contemplated/anticipated (nor for the purpose of obtaining legal advice), then the transcript is not privileged.
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.
Without prejudice correspondence in which settlement offers are made and responded to is also privileged.
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. 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.
Where an insurance company is involved in the litigation (e.g. a legal expense insurer or an indemnity insurer) the insurance company may in some cases and in some sense also be a "client" and privilege can arise in some cases in respect of communications with the insurance company. This is a particularly complex area and if you think that this might apply then it is particularly important to seek specific advice from a qualified lawyer.
The communications between you and your barrister are likely to be concerned with the seeking of, or giving of, legal advice, or for the purposes of actual or contemplated/anticipated litigation, and so will be privileged.
If an email is sent with attached documents then generally each attached document has to be considered separately. If, attached to an email from a barrister is the barrister's written Opinion then that Opinion will clearly be privileged. If the barrister has also attached a copy of a document which they have obtained from a public statutory register such as the Land Registry then that will not be privileged.
If you email a copy of a document, such as a Register of Title document from the Land Registry, to a barrister and they send you an email attached to which is a written Opinion together and also an annotated copy of the Register of Title, then the annotated copy - if the annotations relate to the giving of advice - will be privileged as will the written Opinion but the unannotated copy of the Register of Title document you have remains unprivileged.
Some other types of lawyer, such as solicitors and legal executives, as well as or instead of giving legal advice and/or doing litigation work, carry out some transactional work. If you have previously used a lawyer to carry out a transaction, then although some of the correspondence between you and that lawyer may be giving and seeking legal advice (and so be privileged) much correspondence will just be about the mechanics of the transaction and so not be privileged.
Take the example of buying a house. When you sign a contract for the purchase, or sign a Transfer of the property, that signed document is not privileged. But before you signed the contract with that wording your solicitor may have written to you enclosing a draft contract supplied by the purchaser's solicitors, with a letter advising you about certain clauses in it, the pros and cons of them and whether it would be advisable to seek to amend them. The covering letter from your solicitor advising on the acceptability of certain clauses is privileged but the draft contract (received from the other side) is not privileged. However if the draft contract enclosed with the letter from your solicitor has been annotated by your solicitor then that annotated copy may be privileged.
As a general rule anything sent between your solicitor, and the other side, will not be privileged. Some of the things sent between you and your solicitor will, and others will not, be privileged.
Privileged correspondence between you and your lawyer you will, in all normal circumstances, 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. Very occasionally it may be advantageous to waive privilege for documents (e.g. emails) in which you seek legal advice from a qualified lawyer and/or documents from the lawyer (e.g. emails/letters/formal written Opinions or reports) but great care is needed before doing this - and it is particularly important to take advice from a qualified lawyer if you are considering waiving privilege in such documents. This is not only because allowing your opponent to see such documents may give them an unfair tactical advantage but also because waiving privilege in one document may allow your opponent to obtain an order requiring other related privileged documents to be disclosed as well. Despite these disadvantages, however, very occasionally it might be in your interests to waive privilege in such documents.
For example if you are bringing a claim and one of the issues in the case is whether, at a certain point in time, you reasonably believed something (which turned out in the end to be incorrect) the legal advice you received at the time is likely to be relevant to your belief and the reasonableness of it. For example if you purchased property and you believed it included a particular area of land (because e.g. it is your side of a wall or fence) and whether or not your belief was reasonable is one of the issues in a case the "report on title" which you will have received from your conveyancing solicitors will show what queries (if any) about title your conveyancing solicitors brought to your attention at the time. If there is no query about the area in question that helps to show that your belief was reasonable. If the "report on title" contains no queries or issues at all (i.e. it is purely straightforward and factual) then it might be argued that it is not privileged in any case because it contains no advice (so that the question of whether or not to waive privilege does not arise), but if it is privileged (e.g. because it contains some queries/advice on some other matters) then it might nevertheless be in your interests to waive privilege and use it to help prove your case.
Some privileged documents - e.g. photographs taken when litigation was contemplated/anticipated - you will want to use at the final hearing (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 final hearing. Some other examples of situations where you might decide to waive privilege are outlined below.
If an audio recording - e.g. MP3 file - is disclosed and its contents need to be referred to at the final hearing, (and assuming no suitable transcript was made before litigation came to be contemplated/anticipated) it is usual for the parties, at some stage well before the final hearing (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 eBundle, because reading a transcript at the final hearing is much easier than listening to an audio file. At the time of Disclosure 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, when you provide a copy of the audio file. 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 at the same time as you are providing a copy of the audio file itself at the Disclosure of Documents stage.
The same principle applies if a document is disclosed which is difficult to read (e.g. because it is handwritten). To assist the tribunal, normally the parties, at some stage well before the final hearing (e.g. before the exchange of witness statements stage) will agree the wording of a typed transcript to be included in the eBundle (inserted just after a copy of the difficult-to-read document which should also be included in the eBundle). 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.
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 will not be applicable to every case: it is intended to be used only in conjunction with more specific advice to the individual client about the individual case. This information page should not be used by, or relied on, by anyone else.
This page was lasted updated in January 2025. Disclaimer