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27 April 2010Name Surname One

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Liverpool Insurance Institute

Breakfast Briefing

Legal Professional Privilege

10 March 2015

Chris Gough

Consultant

Learning Objectives

o The concept of “privilege” and why it exists

o Document generation with implications for litigation

o The stakeholders in the generation of documents

o Determining whether privilege attaches

o Practical strategies to assure protection

Basic Principles (1) - Inclusivity

o Administration of Justice (good decisions at trial)

o Public interest (desire for confidence in outcomes)

o All relevant material available and included when deciding

cases

o Conflict arises with alternative and competing public

interest…

Basic Principles (2) – Right to

unfettered legal adviceo Legal system should work efficiently

o People need to candidly investigate their position and

seek professional legal advice (access to justice)

– Orderly conduct of every day affairs

– Proper conduct of court proceedings

TO ACHIEVE ALL THAT…

o Communications between clients and lawyers must be

uninhibited.

Pause, reflect, conflicting interests…

o If ALL material is open to scrutiny by the Court (“Inclusivity

principle”)

THEN

o What implications for communication with solicitor or own

investigations “in contemplation of litigation”?

o (Think about the insured!)

Answer: Legal Professional Privilege

o The right not to disclose:

– Communications passing between lawyer and client created for the purpose of giving/receiving advice

Legal Advice Privilege

– Documents which were created for the dominant purpose of aiding the conduct of litigation (actual or reasonably in contemplation).

Litigation Privilege

Document Generation

o When might sensitive documents be generated?

– Pre-event risk assessments & method statements

– Near miss / similar fact accident reports/riddor notifications

– Post-event accounts of accident

– Pre and post-event internal emails (“idle chatter”)

– Work diaries

– Personal diaries

– H&S Accident investigation process

– Board of Inquiry hearings and reports

– Communications with lawyers advising in respect of the “event”

– Board minutes

Stakeholders in the Process…

o M.D.?

o F.D.?

o H&S Manager?

o Technical and “Quality” assurance manager (“TQM”)?

o Foreman/Team Leader?

o Colleagues/witnesses?

o Injured party?

o Any issues raised by that?

Litigation Privilege – Discouraging

the Ostrich?

Litigation Privilege – Why it exists

o Insured under threat

o Known event/accident/circumstance

o Reasonably certain potential claimant/class of litigant

o Overwhelming interest in assessing

– Factual event

– Factors combining to have caused it

– Potential for liability

o Turning the stones unattractive if everything = “evidence”

o Knowledge-based decision making v “head in the sand”

o Closing the gap…

Litigation Privilege – When it applies

o The test for LP to apply:

– Document/communication created confidentially

– Between/by lawyer & client, lawyer and third party, client and TP

– For dominant purpose of conducting or aiding conduct of

o Actual litigation

o Litigation which is reasonably in prospect

Litigation Privilege – Confidentiality

Testo Information NOT in the public domain

o What if that changes?

o The whistle-blower?

o Poor internal safeguards and restrictions on access?

o Electronic transmission and ease of communication?

o Consider strategies for document protection/safeguarding…

Litigation Privilege – Dominant

Purpose Testo Balancing the conflicting public interests

o Limits protection available by considering purpose of

document; was litigation dominant intention behind it?

o Court objectively assesses purpose based on background

o Purpose at time of creation, not subsequent usage

o If created for more than one purpose, may fail test

(Tchenguiz v SFO 2013)

o Litigation must be a “real likelihood” rather than mere

possibility (USA v Phillip Morris and BAT Ltd) [2003]

o Litigation “may happen”; not necessarily greater than 50%

Practical strategies to promote

“privilege”(1) - Authorised Employeeso If everyone is “special” then nobody is!

o Implication for material produced?

o “Authorised Employees” (EAs)

– which employees are authorised to communicate with the lawyers?

– Include in-house lawyers

– Include all employees likely to be involved in the matter

o Only AEs should create investigation documents

Practical strategies to promote

“privilege” (2) – Document Creationo AEs only responsible for fact gathering (or instruct lawyers)

o Evidence captured by AEs recorded in documents

addressed to Lawyers (simple process to set up)

o Board minutes/other minutes should NOT summarise

sensitive legal advice

o Refer to advice as separate document/in second set of

minutes

o Mark internal correspondence “Confidential and for purpose

of obtaining legal advice”

Practical strategies to promote

“privilege”(2) – Document Creation…o Mark correspondence to the lawyers “Privileged and

Confidential”

o Avoid written communication (internal or external)

concerning contentious matters (especially what type?)

o Encourage oral discussion of relevant matters and limit

written documents to neutral records of fact

o Where a document does contain opinion ensure it is fully

reasoned to avoid later misconstruction out of context

Practical strategies to promote

“privilege”(3) - Internal circulation…o Legal advice may need sharing internally

o Send hard copies rather than emails

o Mark all pages “privileged and confidential”

o Advise employees the hatches have been battened

– Should limit circulation of sensitive information

– Avoid disseminating or commenting on legal advice where possible

– Discourage from keeping private diaries/notebooks

Practical strategies to promote

“privilege”(4) Comms with 3rd Partieso Secure sensitive advice/information in person (a meeting)

o Authorised Employee/Lawyer should be present

o AE/Lawyer should make note and mark it “P&C”

o Be cautious about sharing legal advice with interested

parties

o Make clear:

– Advice is confidential and privileged information

– Purpose for which it has been disclosed

– No intention to waive privilege in respect of the advice or information

– Acknowledgment and acceptance of terms required

Legal Advice Privilege (LAP)

o “communications between lawyers and their clients

whereby legal advice is sought or given” (Three Rivers DC

v Bank of England) [2004]

o Can be used as means of cloaking corporate internal

investigations where lawyers are appointed to “oversee”

investigation

– Specific retainer entered with lawyer to advise on specific event

– Lawyer commissions AE to undertake internal investigation

– Authorised Employee collates information to submit to external lawyer

– All reports and notes submitted to external lawyer who gives initial view (LAP attaches to all notes and communication)

Recent “incursions” around Privilege

o The Times, 19 Feb 2015

– Claim in Investigatory Powers Tribunal

– Gov’t admits intelligence service breached human rights

– Intercepted and handled legally privileged communications between lawyer and clients

o The Times, 5 February 2015

– Director of SFO (David Green QC) ready to mount test case against companies obstructing investigations

– Companies allegedly hiding behind Legal Professional Privilege

– Intends seeking warrant for disclosure or declaration of “no privilege”

Conclusions

o LPP long established “shield”

o Protects right to access unfettered legal advice

o Protects right to understand one’s own case/evidence

without risk of self-incrimination

o Courts limit applicability to specific “narrow” instances

o Parties can take steps to improve “defensibility” of privilege

o Regulators and others on the march to challenge it where

national security or prevention of fraud are in play

Any Questions?