EM2595 - Information Powers: TMA70/S20: Legal Professional Privilege

A person is not obliged to deliver or produce documents or information in respect of which they can sustain a claim to legal professional privilege. This derives from the decision of the House of Lords in the case of R v Special Commissioners and another ex-parte Morgan Grenfell & Co Ltd [2002] UKHL 21.

Legal professional privilege is a complex area of the law but, broadly speaking, attaches to

• documents containing confidential communications between lawyer and client for the purpose of obtaining or giving legal advice
• documents produced for the purpose of contemplated or actual litigation

Where you are seeking documents or information of a legal nature, the notice or any informal request should contain a paragraph along the following lines

“You are not obliged to deliver/produce documents [or furnish particulars/provide information] to which a claim to legal professional privilege can be maintained but you can choose to and it may assist progress of the enquiry if you do. Legal professional privilege is a complex area of the law which only properly applies in limited circumstances. I may wish to challenge any claim to legal professional privilege on the basis that I disagree that the documents/particulars/information being withheld properly fall within the scope of the privilege. Therefore, if you decide to withhold documents/particulars/information on the grounds that legal professional privilege attaches to them, please provide a description of each item withheld”

Where any claim for legal professional privilege is made (or any other matter relating to legal professional privilege arises) a report should be made to contact link.