Monday, October 13, 2008

Legal Professional Priviledge

An issue came up with a client of mine recently where there appeared to be some confusion regarding legal professional privilege. Luckily I have happened to stumble upon a document on the HSE website which seems to sum things up quite nicely. From this I understand that the only documents that anyone can claim to be priviledged are ones where a client asks their solicitor for legal advice. Any other document (e.g. accident investigation report, audit report etc.) will have been produced for a different purpose and so an HSE inspector could demand a copy if it was considered essential for their investigation.

The text from HSE is shown below - aimed at HSE inspectors.

33. Your powers under section 20 cannot compel the production of documents which are entitled to be withheld on grounds of legal professional privilege.
34. Legal professional privilege extends to communications, statements, reports and information created during the course of a solicitor-client relationship, the broad purpose of which is the obtaining and giving of legal advice.
35. If a document was created for several purposes, it will attract privilege only if the dominant purpose was obtaining legal advice. Such advice may relate to criminal or civil proceedings, actual or contemplated. Legal privilege attaches to communications between solicitors and expert witnesses, but not to the expert's opinion on the case or the documents or objects on which the expert based the opinion.
36. The privilege is that of the client, so that the client is entitled to waive privilege and show you the document or use it in evidence.
37. If a company has prepared a report on an accident, for example, this will be privileged if the dominant purpose was the obtaining of legal advice, but it will not be privileged if it is prepared simply because there has been an accident, or for avoidance of further accidents. You should remember, however, that you would only be entitled to see such a report if it is 'necessary'. An engineer's report that was obtained for the purpose of deciding whether to contest proceedings (civil or criminal) would be privileged.