Litigation privilege is a protection that attaches to all communications that have been created for the dominant purpose of preparing for litigation. It means you do not have to share those documents with the other side.

Litigation privilege is restricted to communications created while preparing for litigation. In some cases this privilege can extend to third parties, such as communications with an expert witness.

Privileged information can be prevented from being used in legal proceedings, unless the privilege has been waived. Only a client can waive the privilege attached to communications and other documents.

The High Court recently heard a case regarding the scope of litigation privilege. One party wished to rely on communications that had been created in the process of negotiating agreements, as evidence for the legal proceedings. The other party claimed that they were covered by litigation privilege.

The Court had to determine whether the communications were covered by the privilege. If they were privileged communications, they could not be used as evidence in the proceedings.

The Court decided that litigation privilege requires that the communications were created in contemplation of litigation. This means that they must be created in the process of preparing for current litigation, and not potential litigation that may happen in the future.

In this case the Court decided that the communications regarding negotiations were created for the purpose of one party acquiring rights against the other party. They were not created with the current litigation in mind, or in preparation for the litigation.

The Court decided that there was no litigation privilege attached to the documents and therefore they had to be disclosed for the legal proceedings.

It is important to be aware of your rights and obligations as a party to legal proceedings. If you are confused about these rights and obligations, it pays to seek advice from a professional with experience in the area.


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Alan Knowsley and Hunter Flanagan-Connors