How far can legal privilege extend?

Dec 2018

How far can legal privilege extend?

The concept of ‘privilege’ naturally allows legal advisors to curb the general rule of disclosure of confidential documents in respect or any advice sought and received and during the course of court proceedings for correspondence between them and their client. This principle is based on public policy, which ensures the foundation of client confidentiality to extend to the courtroom.  This is otherwise known as legal advice privilege and litigation privilege.

The purpose of privilege is to allow confidential communication to flow freely between the legal advisor and their client. Once the rule has been established, the court shall not interfere with this.

It is widely accepted that both grounds upon which privilege can apply encompasses in-house lawyers as well as private practising legal advisors. However, what about advisors who are not members of the legal profession, such as HR consultants?

Only members of the legal profession are afforded the protection of both rules. This includes a wide bracket of professionals including: solicitors, barristers, in-house lawyers, foreign lawyers, legal executives and licensed conveyancers. Furthermore, also paralegals and trainees can be presented within the scope of this rule (if properly supervised, then it shall be the work of the legal department as a whole).

Whilst litigation privilege can apply to unqualified legal advisors, such as HR consultants, who are not acting under the direct supervision of a qualified lawyer, the same cannot be said with any degree of certainty in respect of legal advice privilege. We have seen a flux of case law providing some ambiguity in this area suggesting that the advice given by a HR consultant will not attract legal advice privilege such that any advice given may be disclosable in tribunal proceedings, if relevant. It is therefore much safer practice for clients to rely on confidential advice given by qualified, practising legal professionals, rather than taking a gamble on whether correspondence between them and their consultant could in fact be disclosed in tribunal.

It makes no difference whether the confidential advice given by a non-legal professional is modelled from advice previously given by a legal professional. It would still be vulnerable to disclosure. It is the current position that any extension to the privilege rule would be a case for Parliament to decide.

As all our employment law specialists are members of the legal profession, the practical legal advice given by Chadwick Lawrence’s employment team at any time or during tribunal proceedings is covered by both legal advice privilege and litigation privilege which provides you with peace of mind of knowing that any advice given will not be a disclosable document in any tribunal proceedings.

If you have any queries on legal privilege, get in touch with us today on 10924 379 078 to speak with our employment team.