HomepageCommercial LawPrivate LawPublic Law & Human RightsCriminal LawEU & International LawCareers

Accessibility

Have Irlen Syndrome, or need different contrast? Click the button below for options.

Background Colours

Subscribe

Enter you email address below to subscribe to free customisable article notifications.

Alternatively, click the button below for our various RSS Feeds (available journal wide, or per section).

Legal Professional Privilege and the Snooper's Charter

Article Cover Image

About The Author

Rachel Dean (Regular Writer)

Rachel graduated from the University of Leicester with her LLB European Hons in 2010. She is now a trainee solicitor at Lockett Loveday McMahon in Manchester and is due to qualify in May 2016. Her interests lie predominantly in commercial law.

In 2011 a favourite actor of mine, Matthew McConaughey, starred in a film called ‘The Lincoln Lawyer’ based upon a book of the same title by Michael Connelly. While some of his actions as a lawyer are questionable (best not to look to Hell’s Angels for client management tips) the film’s unpacking of an important concept in the law was interesting and thought provoking. This concept was attorney-client privilege, also known as legal professional privilege in English law.

Those readers with a finger on the pulse of the legal press will have undoubtedly seen that legal professional privilege (“LPP”) has been the focus of intense debate both among lawyers and within Parliament as a result of the draft Investigatory Powers Bill which is currently under consideration. Specifically, discussions have focussed upon the effect that the Bill will have on LPP going forward.

A common law principle

LPP has been an important principle in common law since the 1577 case of Berd –v- Lovelace in which it was held that the relationship between a lawyer and his client was a ‘special contractual relationship’ warranting particular treatment. Greenhough –v- Gaskett in 1833 confirmed this, with Lord Brougham noting that 'if privilege did not exist at all, everyone would be thrown upon his own legal resources, deprived of professional assistance. A man would not venture to consider any skilful person or would only dare tell half his case'.

It was not until 1998 that the principle was finally codified (to an extent) within the Civil Procedure Rules (CPR). Of note is the fact that LPP cannot be relied upon to facilitate crime, a notion which is reiterated by section 10 of the Police and Criminal Evidence Act 1984 (PACE).

Disclosure within litigation

By way of background, litigation (both civil and criminal) centres to a greater or lesser extent on the factual evidence held by the parties. This evidence may be contained in a variety of documentation, including digital media, such as emails, text trails, and recorded phone calls or voicemails. Rule 31 of the Civil Procedure Rules (CPR 31) deals with the rules surrounding the disclosure and inspection of applicable material from such documentation.

Disclosure obligations weigh heavily on parties from the commencement of a claim, and orders for standard disclosure (the usual order made by Court during case management at the beginning of the claim) compel the parties to disclose the evidence on which they intend to rely, including materials which may adversely affect either their own or the other side’s case, or which may strengthen either side’s argument.

This obligation is on-going until the conclusion of the case and means that parties are required to bring to the attention of the other side, at any point, any relevant materials they may come across following the initial disclosure and inspection exercise. This could include, for example, a document or hard drive containing files which were thought to be lost. Any failure to do this is taken very seriously by the courts and can hugely affect the outcome of a case and has the potential to derail the strongest of claims or defences. Indeed, I worked on a case where a document belonging to the Claimant (a bank) which should have been disclosed early in the case only came to light on the morning of the trial. Prior to the discovery, it was highly likely that the Claimant would win against our defaulting Defendant customer. The outcome, however, was favourable, consisting of a fairly substantial settlement payout to the Defendant, the Defendant’s legal costs, and Counsel’s retainers.

However, contrary to the above paragraph, parties do not have to disclose documents which are either privileged by reason of being the product of legal advice, or which were prepared in contemplation of litigation: in other words, documents which are subject to LPP.

So, what exactly is LPP?

At the most basic level, LPP entitles a party to withhold evidence which it would otherwise have to disclose from a third party or the court. LPP is commonly split into two strands, each of which is considered in turn below

The strands may sound similar and they can, in theory, encompass the same information. However, they are also unique, and it is, therefore, important to recognise the necessary elements (highlighted in bold above) required for either strand of LPP to be effective.

Legal Advice Privilege

1) Legal advice privilege which covers all communications made in confidence between a lawyer and client for the purposes of giving or receiving legal advice.

Confidential

For any communication to be privileged it must be confidential, meaning that it must not already be within the public domain.

Communications

As a general rule, anything which a lawyer commits to paper during his time as a retained legal adviser for the client and which he only knows as a consequence of their professional relationship will be privileged, even if not sent to the client. However, the principle has also been taken to cover verbal communications between a lawyer and their client. It is this point which I will turn to in greater detail later in this article.

Lawyer

Communications will only be covered by privilege if they are with a member of the legal profession. This includes barristers, solicitors, legal executives, and foreign lawyers, but also extends to other employees within firms, provided they are supervised by a qualified fee earner. This could cover secretaries, clerks, trainees, pupils, and paralegals. However, it is worth noting that, where (as in the case of Dadourian Group International Inc and Ors –v- Paul Francis Simms and Ors) a client instructs an individual in good faith believing them to be a lawyer, even though they are not, privilege has been held to apply, although there will be a burden of proof to be met.

However, by a majority of five to two, the Supreme Court in the 2013 case of Prudential plc –v- Special Commissioner of Income Tax refused to extend privilege beyond members of law firms and, in particular, did not hold that tax advisers, even those providing legal advice, were covered by privilege. There may be some solace from the dissenting judgments and from Lord Neuberger though who, commenting at paragraph 44, said that 'judicial and other observations from the 19th century are of little use, as we are now in a world where a great deal of legal advice is tendered by professional people other than members of the legal profession, as is recognised by the fact, mentioned above, that giving legal advice is not a reserved legal activity under the 2007 Act'. He went on to note it was an issue of policy to be properly addressed by Parliament.

It seems to me, therefore, that as the legal sector widens, the principle of LPP may well be forced to adapt further, whether that be by judicial decision making or parliamentary order.

Client

For individuals it is usually fairly straightforward who is covered, and the lawyer’s retainer letter should explain this. For corporates, there is a greater scope for problems as not all communications produced by employees of a company will necessarily be privileged; what is important is whether that employee was tasked with seeing and receiving legal advice on the corporation’s behalf.

Legal Advice

The communication must have been made for the sole or main reason of giving or receiving legal advice, a notion which has been construed widely by courts and is likely to cover advice on the law as well as advice on what should sensibly be done in the circumstances.

Litigation Privilege

2) Litigation privilege covering all confidential communications between a client or lawyer and a third party where litigation is contemplated or has commenced and the communication is made for the dominant purpose of that litigation.

Litigation privilege is narrower, and has two further elements.

Litigation

In order for the litigation privilege to apply, the communication must have been made in the context of current or contemplated (i.e. a real likelihood) adversarial litigation, being court or tribunal proceedings, arbitrations, and foreign litigation. Communications with reference to inquisitorial or investigative proceedings will not be privileged.

Dominant Purpose

The communication must have been created for the purpose of being used in litigation for privilege to apply and it should be able to be shown that litigation was the purpose for its creation.

A Case for legislatively codifying LPP?

LPP is rightly considered a vital concept within the legal profession: it has stood the test of time and has been affirmed by substantial case law; each of the elements above has been extensively considered and defined by the courts. Consequently, is there now really a need to codify the principle in legislation, turning it into a creature of statute rather than common law?

On the one hand, it is necessary to remember that the principle has been breached by various surveillance bodies and is likely to be breached again. Earlier this year, the UK’s Intelligence and Security Committee admitted that the current piecemeal and complicated rules governing communications surveillance have led to a lack of transparency. One example of this is the Court of Appeal case of Abdel Hakim Belhaj last year, from which there is likely to be an investigation into allegations of illegal surveillance and breaches of LPP.  

Indeed, Chairman of the Bar, Alistair MacDonald QC, noted in a press release in June that 'when security services were found to have spied on lawyers’ meetings with client earlier this year, the Government was forced to admit the practice was unlawful'. The Law Society, like the Bar Council, believes that communication and information falling within the confines of LPP should be protected and, in a joint press release last month stressed that the 'current legal framework for the exercise of investigatory powers is not fit for purpose…'. As such, it is possible that codifying the principle of LPP would reduce organisations acting illegally in that way.

Further, the increased connectivity of our nation as well as the ease with which information can be obtained, for right or wrong means, has led to a scenario where very little communication is off-limits. As such, perhaps it would be preferable to have, contained within statute, the protections and limits of LPP as well as the penalties for non compliance.

But is it really necessary? As mentioned above, it is a longstanding principle enshrined in case law dating back to the 16th century and re-established by many cases since. The principle of LPP is also already enshrined in current legislation and guidelines, such as the CPR and PACE. Such legislation governs and protects LPP statutorily and can be relied upon by the courts. Perhaps the greatest advantage of the principle as it stands, however, is that our judiciary retain discretion for decision making in relation to it. They are able to consider the often nuanced facts relating to LPP or, indeed, a breach of the same and come to their own conclusions, free of a rigid statutory framework. It is then up to Parliament to change the law accordingly. An example of this is the limited extension of the principle of LPP to other professionals by Parliament; for example, patents agents enjoying rights against production of their advice in certain circumstances.

A Tug of War

Whilst I have no doubt that most lawyers will have an opinion one way or another about whether LPP should now be legislatively codified, it seems to me this discussion is rather more symptomatic of a deeper issue which has been bubbling under the surface of our law and politics for some time. That issue, as Alistair MacDonald QC notes in an article for Counsel Magazine is 'the degree to which personal freedoms should be sacrificed on the altar of public safety'.

The horrendous attack on the twin towers in New York back in 2001 and the terrible attacks since, like the most recent tragedy in Paris last month have pushed the issue to the fore with some severity.

Development of the draft Investigatory Bill

I am sure that it has been an increased awareness and concern of terrorist activities that has caused a desire to provide scope for, and powers to, undertake covert surveillance. Indeed, attempts to increase these have remained on the Government’s agenda for a while. When the coalition Government first proposed a Communications Bill in 2013, leading internet companies warned of harmful consequences, causing the Government to back down.

However, following the Conservative win in this year's general election the Home Secretary, Teresa May, said that she would seek to re-introduce the so-called ‘Snoopers’ Charter’, a Bill (which was previously blocked when Nick Clegg withdrew support) to 'increase the security of the British people'.

The Government’s plans for the new legislation were reaffirmed in the Queen’s speech in May. But the draft Bill has caused quite a stir among civil liberties activists, as well as lawyers, fearing for the rights of both themselves and their clients. At the time of the Queen's speech, the then President of the Law Society, Andrew Caplen, voiced concerns over the future of LPP. In a world which is increasingly interconnected, online and digitally available Mr Caplen was critical of the introduction of sweeping surveillance powers contained within the Data Retention and Investigatory Powers Act 2014. Indeed, others within the political and human rights sectors challenged the legislation as being contrary to privacy rights.

In the foreword to the draft Bill, May comments that 'the issues covered…are matters of national importance and will rightly be subject to scrutiny and debate'. The context section similarly notes that it will ’govern the use and oversight of investigatory powers by law enforcement and the security and intelligence agencies, strengthening safeguards and introducing world-leading oversight arrangements.’ The Bill intends to create a single new independent and more powerful Intelligence Powers Commissioner and will create a new statutory basis for retention and acquisition of communications data.

But despite noble intentions to counter terrorism and make Britain, and indeed the world, safer, the Bill has come up against some harsh critics, including Edward Snowden who said it was 'the most intrusive and least accountable surveillance regime in the West'.

The Law Society and the Bar Council have made a clear case against the proposed legislation on the grounds that it lacks statutory protection for LPP. Concerned about the 'absence of explicit protection for clients', Law Society President, Catherine Dixon, suggests that the principle of LPP which is so vital to our administration of justice be better safeguarded. With a joint campaign against the draft Bill, it will be interesting to see what, if any, changes are made during the pre-legislation stages ahead of a revised bill appearing before Parliament in spring of next year.

Would such a piece of legislation provide us with better protections, or would it act as pretence for a big brother state in which even the innocent are watched and listened to with little in the way of recourse against it?

The future

I am, like many others, concerned by the terrorist activity which seems rife and unpredictable here and around the world. I am of the view that the Government must do all it can to facilitate the takedown of potential terrorists and intercept terrorist plots in order to save lives and keep peace within our nation. However, I am unsure whether this should be allowed to be accomplished by any means necessary which, it seems to me, is the subconscious aim of the draft Bill. Taking it to a logical conclusion, it would also have the effect of cancelling out LPP in any scenario where national security was a concern. It is this potential outcome that concerns many in the legal profession.

I have no doubt that surveillance can and does save lives, but in allowing the state to carry out surveillance operations unfettered, and against well established legal principles, are we not in one sense allowing ourselves to succumb to one of the objectives of the extremists by creating a culture of fear and suspicion which curtails and limits our civil and personal liberties? I quite agree with Andrew Caplen that LPP must be protected so that the fair administration of justice can continue.

In closing, I think it fitting to repeat the words of the Bar Council in a recent press release ‘Legal professional privilege is one of the most important safeguards protecting the fairness of a trial. It is a doctrine that has existed as a constitutional principle for centuries. If the state eavesdrops on privileged communications to gather intelligence, clients will feel unable to speak openly with their lawyers… [and] breach of this privilege carries with it great risks to the integrity and fairness of criminal and civil trials’. We are, after all, a developed and democratic state and long may that continue.

For the latest articles straight to your inbox, you can subscribe for free. Alternatively, follow @KeepCalmTalkLaw on Twitter or Like us on Facebook.

Tagged: Commercial Law, Dispute Resolution, Litigation

Comment / Show Comments (0)

You May Also Be Interested In...

Pimlico Plumbers v Smith: Clearing a Blockage in the Employment Law Pipe?

27th Jul 2018 by Mark O'Neill

Can Foreign Investors Sue The UK For Billions Over Brexit?

3rd Jul 2018 by İnayet Aydeniz Baytaş

Fair Use on YouTube: The H3H3Productions Copyright Case

19th Sep 2017 by Connor Griffith

A Global Perspective on Anti-Suit Injunctions

4th Jul 2017 by Alexios Ektor Koursopoulos

The Recoverability of Pre-Action Costs: An Unfair Balance

24th Jan 2017 by Jonathon Wright (Guest Author)

The Ominous World of Investor-State Dispute Settlement

5th Oct 2015 by Rebecca Von Blumenthal

Section Pick March

Coronavirus and the ECHR: Should the UK Trigger Article 15?

Editors' Pick Image

View More

KCTL News

Keep Calm Talk Law: Moving Forward

3rd Sep 2019

Changing of the Guard: Moving Keep Calm Talk Law Forward

12th Aug 2018

An Anniversary or Two: Four Years of Keep Calm Talk Law

11th Nov 2017

Rising from the Ashes: The Return of Keep Calm Talk Law

18th Nov 2016

Two Years On, Keep Calm Talk Law’s Legacy is Expanding

11th Nov 2015

Twitter

Javascript must be enabled for the Twitter plugin to function. Click below to visit us on Twitter.

Free Email Subscription

Subscribe to Keep Calm Talk Law for email updates, and/or weekly roundups. You can tailor your subscription on activation. Both fields are required.

Your occupation / Career stage is used to tailor your subscription and for readership monitoring.

Uncheck this box if you do not want to receive our monthly newsletter.

By clicking the Subscribe button, you agree to our privacy policy and terms of service. Please ensure you read these in full.

Free Subscription