What is 'Litigation Privilege'? | Hudson McKenzie

What is ‘Litigation Privilege’?

‘Litigation Privilege’ in English law is a fundamental component both for an individuals or parties’ rights. Therefore, exactly what is it and how can it be used?

With ‘Litigation Privilege’, individuals and parties have the freedom to create documents during a litigation case, without the opposing party being able to view or use the document during the investigation process.

By allowing for the other party to not see the document created, this determines the document in question as having a special ‘privilege’.

Therefore, this means that by having this special ‘privilege’ status, the document can be withheld from the opposing party of a litigation case accordingly, as a fundamental right.

An example of a document that may have a special ‘privilege’ may be when a solicitor representing a client communicates with a client or a third party and through this communication makes notes accordingly.

By claiming that the notes as a document has a special ‘privilege’ assigned, this therefore means that the opposing party can therefore not view or use the document as part of their own case during the litigation case process.

However, for a document to have a ‘privilege’ assigned, the document in question must meet a strict-criteria.

For instance, the document must be the following:

  • A communication between a solicitor or client and a third party
  • Made by or on behalf of the client or solicitor
  • Confidential
  • Made for the purpose of litigation
  • The litigation in question must be currently active – contemplative or existing.

Therefore, to protect the right to ‘Litigation Privilege’, solicitors and their clients are urged to keep to this strict criterion, as well as ensuring that all contact with third parties is handled in the correct way as outlined.

If you would like to discuss this article further or have any general legal enquiries, please contact one of our highly qualified solicitors on 020 3318 5794 or via email at londoninfo@hudsonmckenzie.com