Legal privilege in Scotland and England and Wales

Legal advice privilege is a type of legal professional privilege. It is also known as client-solicitor privilege. It generally applies to confidential communications between solicitors and their clients. The purpose is to allow clients to take legal advice without the risk of the nature of anything communicated being revealed at a later date.

Legal advice privilege only applies to communications between clients and solicitors. It does not apply to communications to/from other professionals. Care also requires to be taken with regard to identifying who is the “client”. If the client is a corporate entity, for instance, it does not necessarily follow that communications with each and every person within that entity will be considered a “client”.

As well as applying to private practice solicitors, it applies to in-house lawyers in the UK (but not for the purposes of EU law), as long as the in-house lawyer is giving legal advice – commercial advice will not be privileged. 

Litigation privilege is another type of legal professional privilege. It applies to (generally confidential) communications and documents prepared not only after litigation (or arbitration) has begun, but also “in contemplation” of litigation.

This often overlaps with legal advice privilege as it applies between solicitors and clients. However, litigation privilege can also apply to communications and documents passing between solicitors and clients/third parties – for example, communications with, and reports from, independent expert witnesses. Litigation privilege continues even after the litigation has ended.

A two-stage test is applied to determine if this privilege applies, which considers whether the communications/documents in question came into existence: (i) after the litigation had begun or was contemplated; and (ii) for the sole or dominant purpose of the litigation.

Communications/documents prepared after litigation has started are described in Scotland, as being “post litem motam”.

In both jurisdictions, whether a document has been prepared in contemplation of litigation depends on all the facts and circumstances. 

The concept of common interest privilege has no equivalent in Scotland.

A 2010 case in the Scottish courts questioned whether common interest privilege was recognised at all in Scotland, and it has not seen development in later case law.

Written or oral communications and documents which are “without prejudice” are those said or sent in a genuine attempt to settle a dispute. Lawyers do not have to be involved. The principle is that they cannot be relied upon in later court, i.e. they should be excluded from evidence. Those court proceedings do not have to be in place at the time, or even threatened.

Clearly labelling a communication or document as “without prejudice” may assist in showing a party’s intention. However, that wording does not of itself determine that the communication or document is in fact without prejudice. For more on this topic following recent Scottish case law, see this article from our colleague David Sharkey.