November 18, 2018

Give yourself a fighting chance – how to make privilege work for you

The English legal system imposes a heavy burden (rivalled only by the US) on parties to a dispute to give disclosure of all relevant documents, regardless of whether the documents are helpful or harmful to them. However, documents can be withheld from an opposing party if they are privileged. Privilege is therefore a useful tool in litigation but it can be waived.

Where privilege is waived, the waiver is usually inadvertent and is often a result of the relevant individual(s)' innocent misunderstanding of how privilege is created and maintained under English law.

An energy claims handler will frequently be required to communicate with co-insurers, reinsurers, in-house legal, management, underwriters, actuaries, loss adjusters, forensic accountants and lawyers.  Insureds will similarly have internal reporting obligations plus communications with brokers, lawyers, banks/lenders and perhaps shareholders.

Which of these communications are privileged?  A common misconception is that communications with lawyers are privileged whilst others will not be unless the lawyer receives the email in "cc".  Regrettably, the position is not as straightforward as that, but the good news is that communications with all of the above stakeholders can attract privilege in certain circumstances.

The two main forms of privilege which parties seek to avail themselves of in English proceedings are legal advice privilege and litigation privilege. 

Legal Advice Privilege

Legal advice privilege is self-explanatory and broadly relates to the seeking or receiving of legal advice from a lawyer to a client.  However, advice only remains privileged if it is kept confidential and is held in the hands of what tends, in practice, to feel like a small group of individuals who are involved in dealing with a claim.  Not everyone in your organisation will be a "client".  Once a document loses its confidential nature, that confidence cannot be recovered and it will no longer be privileged.  There are many nuances of legal advice privilege but a basic rule of thumb would be to ask yourself some threshold questions before hitting "forward" on legal advice:

  1. Will this advice remain confidential if I forward it to this person?

  2. Is this person's interest aligned with mine in respect of this claim, i.e. do we share a common interest in the legal advice?

  3. Am I confident that my comments on the advice would not constitute a new unprivileged document for disclosure purposes?

    If the answer to any of these questions is negative then you may want to think again.

Litigation Privilege

Once litigation between the parties to a dispute is reasonably in prospect, litigation privilege can arise.  Any confidential communications at that stage will be privileged if, and only if, the communication is "made for the dominant purpose of obtaining information or advice in relation to the litigation".  The questions therefore centre on (a) the true dominant purpose e.g. quantum investigations prior to a coverage decision may not be relevant to subsequent coverage litigation; and (b) the date litigation is in prospect.  This is where cc'ing  the lawyer could (to put it no higher) help your cause – if you are cautious enough to be thinking about privilege to the extent that you are copying an email to your lawyer, this would support an argument that litigation may already be in your reasonable contemplation.  This only works if you do not routinely cc your lawyer into all claims communications; bear this in mind especially with in house legal.

Privilege is not a simple topic and, admittedly, is it not the most riveting of subjects either.  However, whilst a great understanding of privilege is not going to win you a case, a poor understanding of the principles could cause embarrassment and, at worst, may lose you a case.