Legal professional privilege
Legal professional privilege (“LPP”) is a principle which is basically the same in Scotland and England and Wales (and English case law is generally likely to be applicable in Scotland).
It is divided into (a) legal advice privilege and (b) litigation privilege.
In relation to the former, in the 2005 English Court of Appeal case of Three Rivers District Council and others v Governor and company of the Bank of England (No 6) Lord Carswell stated: “… all communications between a solicitor and his client relating to a transaction to which the solicitor has been instructed for the purpose of obtaining legal advice will be privileged, notwithstanding that they do not contain advice on matters of law or construction, provided that they are directly related to the performance by the solicitor of his professional duty as legal adviser of his client.”
In relation to litigation privilege, communications or documents will be protected if they were made for the dominant purpose of litigation which is ongoing or reasonably in prospect.
Waiver
Thorny issues can arise as regards waiver of privilege. There have been few cases in Scotland on privilege, unlike England, but in 2011, the Inner House of the Court of Session addressed waiver of privilege in Re Scottish Lion Insurance Company Limited.
It was noted as a matter of law that the person entitled to assert privilege can waive it (privilege being for the benefit of the client, not the legal adviser). Waiver can be inferred from the conduct of the person entitled to the benefit of the privilege (inconsistent with the right to maintain confidentiality). It is judged objectively, not on the subjective intention of the party entitled to rely upon it, and can be waived for a limited purpose only, not generally.
In the Scottish Lion case, the court noted that when the Noters submitted privileged documents to the Petitioner with the intention that they should be relied on for the purpose of valuing the Noters' votes in a proposed scheme of arrangement, they must be taken to have done so in the knowledge that the disclosure of those documents to the court, to the reporter, and to creditors who opposed the granting of the application under section 899 of the Companies Act 2006, might be necessary to satisfy the court that it had jurisdiction to grant the application and that sanction ought to be granted.
In these circumstances, the Noters must be taken to have waived any right to object to the disclosure of the documents in question in the present proceedings, to the extent that disclosure is necessary to enable the court to deal with the Petitioner's application and the Respondents' answers. Since the judge at first instance assessed that disclosure was indeed necessary for that purpose is not challenged, it followed that the documents in question must be produced. Privilege had been waived.
Common Interest Privilege
The Scottish Lion case is also interesting because at first instance the Noters sought to rely on “common interest privilege” as well as LPP.
It was argued that as the relationship between the Petitioners and Noters was one of insurer and assured, the documents in the hands of the Noters were both confidential and privileged, the Petitioners had a common interest with the Noters in the receipt of those documents, and the Noters’ privilege subsisted notwithstanding the documents were in the hands of the Petitioners.
This argument did not find favour, with the judge noting that “there is a question of whether common interest privilege is recognised in Scotland”. It should therefore not be sought to be relied upon in Scotland.
Even in England, common interest privilege is not considered to be a separate form of privilege, and the English Courts have concluded that the application of the exemption is inconsistent and uncertain. It is perhaps an example of limited waiver, and can allow a party receiving privileged material to argue privilege without consulting the party sending the material. But the sharing party can unilaterally waive privilege, so it is not without some risk to the recipient.
Conclusion
The overarching point to remember is that maintaining confidentiality is key; limited disclosure may open up arguments on waiver and note that while common interest privilege may be referred to as a concept in England, it is not to be relied upon in Scotland as the law currently stands.
