United Kingdom: Legal Professional Privilege and Implied Undertaking

Legal Professional Privilege

Does your jurisdiction recognise or hold a concept of legal professional privilege? What is it called?

Yes, in the UK there are two limbs of legal professional privilege; legal advice privilege and litigation privilege.

What is the basis at law of legal professional privilege in your jurisdiction?

Legal professional privilege exists under common law in the UK. There are also statutory provisions for patent and trade mark agents in respect of certain communications.

How does legal professional privilege operate in your jurisdiction in the context of:

…lawyers qualified in your jurisdiction?

Legal advice privilege applies to confidential communications between a lawyer and a client which are made for the dominant purpose of the lawyer providing or the client obtaining legal advice.

Litigation privilege applies to communications between the client or his/her lawyer (on the one hand) and third parties (on the other). It also applies to documents created by or on behalf of the client or his/her lawyer that are confidential, which come into existence once litigation is in contemplation or are for the dominant purpose of obtaining information or advice in connection with, or of conducting or aiding in the conduct of, such litigation.

Legal professional privilege extends to counsel and to communications between client and clerk.

…in-house lawyers?

In-house lawyers are treated the same as external lawyers provided that the communications in issue relate to legal matters. This means that, if the in-house lawyer is acting in multiple capacities such as a business advisor as well as in-house counsel, legal advice privilege may not apply with respect to non-legal communications. This is subject to the proviso that no privilege attaches to the communications of in-house legal counsel with their clients when confronting European competition investigations. They are not deemed to be sufficiently independent from their employers.

…patent and trade mark attorneys?

Communications between a client and his/her patent agent relating to the protection of any invention, design, technical information or trade mark or any matter involving passing off or any information in relation to such matters are privileged.

To benefit from this provision, the patent agent (including those working in-house) must be a UK registered patent agent or a person who is on the European list, or a UK registered partnership, an unincorporated body or a body corporate that is registered in the UK as a patent agent/attorney.

Any communication/information relating to advocacy or litigation services also attract privilege if those services are provided by a patent agent who is CIPA registered.

Communications between a client and his/her trade mark agent relating to the protection of any design or trade mark or as to any matter involving passing off or any information relating to such matters are privileged.

To benefit from this provision, the trade mark agent (including those working in-house) must be a registered trade mark agent or a UK registered partnership, an unincorporated body or a body corporate that is entitled to describe itself as a registered trade mark agent.

Any communication/information relating to advocacy or litigation services also attract privilege if those services are provided by a trade mark agent who is ITMA registered.

…foreign qualified lawyers?

Legal professional privilege extends to communications between a foreign lawyer and their client so long as it is for the dominant purpose of obtaining legal advice. This includes where foreign legal advice is needed to assist in domestic proceedings.

What materials or work product does legal professional privilege apply to in your jurisdiction?

Communications may be oral, written or manually or electronically recorded. All manner of documents that comprise communications can be the subject of legal professional privilege. For example, notes and drafts, instructions and briefs, opinions, memoranda, minutes or other documents that relate to information required to advise the client or to conduct litigation on the client’s behalf, are protected.

Similarly, any document prepared with a view to it being used as a communication which would attract privilege, even if it was not in fact so used, can be subject to legal professional privilege

What does legal professional privilege not cover in your jurisdiction?

There is no legal professional privilege attached to communications used for a cloak for perjury or unambiguous impropriety.

How is legal professional privilege waived in your jurisdiction, who can waive it, and what are the consequences of waiver?

Only the client can waive legal professional privilege. If the lawyer has the authority or consent of the client, they can waive legal professional privilege on behalf of the client.

Legal professional privilege can be waived expressly by disclosing protected material to a third party. Recently¹, it was said that the relevant distinction between reliance on the effect of a communication (no waiver) and its contents (may constitute waiver) should be viewed in relation to whether there was reliance on the privileged material, what the purpose of that reliance was and the context of the particular circumstances of the case. Any waiver would extend to any replies from the solicitor to the communication and any further responses from the witness.

Any express denial of waiver will be given little or no weight.

Implied Undertaking

Does your jurisdiction recognise or hold a concept of the implied undertaking?

Yes, according to the Civil Procedure Rules parties may only use materials disclosed to them in civil proceedings for the purposes of those specific proceedings, unless such materials are referred to in open court or the court grants permission for broader use or there is consent by the relevant parties.

What is the basis at law of the implied undertaking in your jurisdiction?

Civil Procedure Rule (CPR) 31.22 provides:

“(1) A party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it is disclosed, except where –

(a) the document has been read to or by the court, or referred to, at a hearing which has been held in public;

(b) the court gives permission; or

(c) the party who disclosed the document and the person to whom the document belongs agree.

(2) The court may make an order restricting or prohibiting the use of a document which has been disclosed, even where the document has been read to or by the court, or referred to, at a hearing which has been held in public.

(3) An application for such an order may be made –

(a) by a party; or

(b) by any person to whom the document belongs.….”

Similar provisions are provided in the Civil Procedure Rules in relation to witness evidence.² In addition, an implied undertaking also arises when, instead of actual documents, an equivalent process of compulsory disclosure (such as inspection of a machinery) is used by the court.³

How does the implied undertaking operate in your jurisdiction, including its scope (and any exceptions or limitations)?

The implied undertaking applies to all documents and information that a party to litigation is compelled, either by reason of a rule or a specific order of the court, to disclose.

How is someone released from the implied undertaking in your jurisdiction?

The implied undertaking not to make collateral use of documents may be lifted by making an application to the Court or by obtaining consent from the party which disclosed the information and the person to whom the document belongs.

In order to be successful in any application to make collateral use of documents, the applying party needs to establish that (a) there are special circumstances which constitute “cogent and persuasive reasons” for permitting collateral use; and (b) the release or modification will not occasion injustice to the person who has given the disclosure.” There must also ordinarily be a public interest in the collateral use of the documents such as investigation of fraud or criminal proceedings⁴.

How can the implied undertaking be breached in your jurisdiction and what are the consequences of such breach? What steps should you take if a breach comes to your attention?

The implied undertaking is breached if the relevant documents or information are used for any collateral or improper purpose other than in relation to the litigation in which they were disclosed.

An application may be made to the Court for an order restricting or prohibiting the use of a document which has been disclosed under CPR rule 31.22(1)(b), as set out above.

Any breach of the undertakings may be held to be in contempt of court and in consequence amount to an abuse of process of the Court. Whether there has been a contempt involves an objective test requiring the determination of whether or not the alleged contemnor has acted in a manner constituting a breach of its undertaking, regardless of whether or not acts were done contumaciously or with the direct intention of breaking the undertakings. Any claim made involving the breach of undertakings may be struck out.⁵