This article was written by David Reade QC and James Bickford Smith for the ELA Briefing and has been reproduced with the permission of the publishers. For further information visit https://www.elaweb.org.uk.
Expectations as to the extent to which legal professional privilege can be asserted over materials generated during internal investigations conducted by external lawyers have been challenged recently. The ensuing cases are of interest to employment lawyers given the increasing prevalence of such investigations, often as likely to give rise o employment litigation as to commercial disputes with third parties.
Legal professional privilege
The starting point is that where a person is entitled to claim legal professional privilege (LLP) in respect of a document, their right to insist on it remaining confidential for all purposes and not disclosed or used to their prejudice (unless statue provides otherwise) whether in court or out of court, is a ‘fundamental human right established in the common law’ (R (Morgan Grenfell & Co Ltd)).
Legal advice privilege (LAP) is a type of LPP that applies to any confidential communication between client (or client’s agent) and lawyer for the sole or dominant purpose for obtaining or giving legal advice, even where no proceedings are contemplated. The privilege is afforded to communications with professional lawyers (R (Prudential plc)).