Legal professional privilege and without prejudice privilege – some unusual exceptions

Privilege and confidentiality

It is common to think of legal advice prepared by your lawyer, or documents marked 'without prejudice' and created in an effort to settle a dispute, as having a confidential (or a privileged) status – they will be held inadmissible in legal proceedings. This allows you to be frank with your lawyer and unconstrained in endeavours to settle a matter. The privileged status of these communications means that they cannot be used against you.

The actual prohibitions on the use of privileged documents can be found in the Evidence Act 1995.While the Act may create the privileged status of documents, it also has numerous exceptions which permit the admission into evidence of what would otherwise be privileged. Some exceptions are well known - think of waiver- but others are less so. What follows is a review of recent decisions dealing with more unusual situations in which privilege may be lost.