Legal Professional Privilege in England and Wales - Other Parties and Other Proceedings

Other Parties and Other Proceedings

A third party is not in general entitled to rely on a defendant's privilege in relation to a document which came into existence for the purpose of enabling the defendant to obtain legal advice pending litigation unless there is some common interest between the defendant and the third party. However, there is an overriding principle that a defendant or potential defendant must be free to seek such evidence without being obliged to disclose the result of his finding to his opponent. Consequently, where a memorandum was prepared by a third party at the request of a potential defendant to enable him to obtain legal advice, the court would not order the third party to disclose the memorandum to the plaintiff, even though the third party was not at the time a potential defendant and was in effect sheltering the defendant's privilege.

The court may not order disclosure of documents held by solicitors on behalf of clients who are not parties to the action if neither the solicitors nor the clients were involved in any relevant wrongdoing.

Legal advice tendered to a party, and thus privileged in the hands of that party, may nevertheless be discoverable to another party which has a common interest with the party holding the documents such that the party claiming discovery falls within the ambit of the confidence subject to which the advice was tendered.