Privilege can apply to both oral and written communications, and to documents in any form whether hard copy or electronic.

For a communication or document to be privileged it must be confidential. However, there need not be an express obligation of confidence. Such an obligation can be implied, and will almost certainly be implied where there is a solicitor / client relationship.

The requirement of confidentiality would prevent privilege arising, for example, for legal advice posted on an internet forum, or for a solicitor’s note of open court proceedings (assuming the note does not betray the trend of the solicitor’s legal advice to the client, in which case it will be privileged on that basis).

Confidentiality will not, however, in itself give rise to privilege. It is perfectly possible that highly sensitive confidential documents will not be privileged and must be disclosed in the course of court proceedings or to a regulator.

Note: Content up to date as at 10 December 2018

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