Privilege

Iniquity exception to privilege requires prima facie case of fraud or crime – breach of a fundamental human right is not sufficient

In a recent decision, the High Court declined to disapply legal professional privilege over documents alleged to reveal a breach of fundamental human rights, in the form of the claimant's right to privacy: Holyoake v Candy and anor [2017] EWHC … Continue reading

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Costs judge finds information from mediation is admissible when considering costs consequences of settlement

A costs judge has held that information about a party's costs provided for the purposes of a mediation could be used as evidence when considering the cost consequences of a subsequent settlement: Savings Advice Limited v EDF Energy Customers Ltd … Continue reading

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No appeal against controversial decision in RBS case applying narrow interpretation of “client” for purposes of legal advice privilege

In a widely publicised decision last December arising out of the RBS Rights Issue Litigation (reported here), the High Court found that interviews conducted by a bank's solicitors with its employees were not covered by legal advice privilege as the … Continue reading

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High Court applies narrow interpretation of “client” for purposes of legal advice privilege

In a decision handed down today, the High Court has applied the much-criticised Court of Appeal decision in Three Rivers No 5 to find that interviews conducted by a bank's solicitors with its employees were not covered by legal advice … Continue reading

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Court of Appeal finds trustees in bankruptcy could not waive bankrupt’s privilege

In a recent judgment, the Court of Appeal has held that trustees in bankruptcy could not waive legal professional privilege of a bankrupt, even though (i) the trustees in bankruptcy were entitled to take possession of the documents in which … Continue reading

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Two High Court decisions illustrate broad application of without prejudice protection

In two recent cases, the courts have rejected attempts to introduce evidence of without prejudice (WP) communications. The decisions emphasise the important public policy role of the WP rule in encouraging settlement by ensuring parties can negotiate freely, without fear … Continue reading

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Court of Appeal finds settlement offer not subject to “without prejudice” protection as it amounted to an unambiguously improper threat

The Court of Appeal has recently considered the rarely invoked "unambiguous impropriety" exception to without prejudice ("WP") privilege: Ferster v Ferster [2016] EWCA Civ 717. Upholding the decision of Rose J at first instance, the Court of Appeal found that … Continue reading

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Article published on common interest privilege

Common interest privilege allows communications or documents that are already privileged to be shared with others who have a common interest in their subject matter without losing privilege. The practical significance of this concept is greatly reduced as a result … Continue reading

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A reminder: relying on privileged material may lead to a wider loss of privilege than you would like

A recent High Court decision acts as a reminder of the dangers that may lie in store for a party to litigation who refers to or relies on privileged material to support its case on the merits. Whenever privileged material has been … Continue reading

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Court of Appeal decision endorses broad view of without prejudice protection

The Court of Appeal has held that discussions between a defendant's solicitor and a claimant litigant in person were or ought to have been seen by both parties as "negotiations genuinely aimed at settlement" and therefore protected by the without prejudice rule. In doing … Continue reading

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