How to protect your right to litigation privilege when there’s a dispute on the horizon
There are recognised benefits in enabling parties to investigate potential disputes without worrying that the documents they create during their investigations will be scrutinised by the other party. The law has therefore established a party’s right to claim privilege over certain documents to keep them out of legal proceedings.
There are two types of legal professional privilege: legal advice privilege, which applies to communications between a lawyer and client relating to legal advice, and litigation privilege, which applies to confidential communications between a lawyer and a client with third parties made in contemplation of litigation. This briefing deals with the latter.
Privilege is a valuable right for a potential litigant — a document that is privileged can be withheld from the opposing party. However, for the right to exist, the document over which it is claimed must meet fairly strict criteria. Those criteria were reviewed in Starbev v Interbrew, a recent case that involved a dispute about the financial aspects of a business sale. The defendant claimed that two categories of its documents were covered by litigation privilege and refused to hand them over to the claimant. The claimant objected and challenged the defendant’s position in court. In finding that the documents were not protected by litigation privilege, Mr Justice Hamblen reiterated the criteria needed for litigation privilege to arise and, in particular, emphasised that…
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