litigation privilege

This is a form of legal professional privilege which applies to materials disclosed to solicitors and other legal advisors for the purposes of receiving legal advice in the context of anticipated or actual litigation. In its most basic form, litigation privilege protects all forms, documents and materials that record communications between a solicitor and its client for the purposes of receiving legal advice in respect to litigation. In this way, the person is able to take legal advice without fear that the materials will be disclosed at a later date and used against him. In essence, litigation privilege is a right to withhold a document from disclosure in English court disputes, legal proceedings and otherwise.

Litigation privilege also extends to other communications incidental to communications between the solicitor and client. For instance, communications between a solicitor and an expert or barrister are similarly protected. It is prudent to mark communications that do not involve the client with the marquee “Made for the purpose of receiving legal advice”, or similar notice that makes it quite clear that the communication has been made in contemplation of litigation.

This form of privilege may be protected by an injunction.

Usage: The claimant in the disclosure statement that his duty to disclose the document was protected by litigation privilege.

Related Words: legal professional privilege; legal advice privilege; litigation; without prejudice; interim injunction; injunction; disclosure; disclosure statement.