Privilege and prejudice

Without prejudice. For the addressee’s eyes only. Litigation privilege applies. Strictly confidential. Or maybe just confidential? What’s the difference again?

Legal correspondence is often marked with one term or another, asserting privilege or confidentiality. Junior lawyers may have a rough idea of each term’s meaning but they are certainly not covered in detail in the new Solicitors Qualifying Examination, leaving each new solicitor to pick them up as they go.

The aim of this article is to provide an explanation of the terms used in relation to privilege, prejudice, and confidentiality, and to consider how they are misused or misunderstood. It speaks to the broad use of the terms, and will not interrogate particularly niche scenarios or exceptions.

Without Prejudice

‘Without Prejudice’ is sometimes seen as being synonymous with ‘not to be disclosed to the court’. The intention being that, just because said document is marked in this way, the opposing party cannot then put this into evidence in court.

Unfortunately, this is not necessarily the case. The term’s meaning was clarified over 130 years ago: Lindley LJ in Walker v Wilsher [1889] found it to mean ‘without prejudice to the position of the writer of the letter if the terms he proposes are not accepted.’

The term needs to be used during a negotiation, when compromising in an honest attempt to settle a matter. Because you may need to offer a concession to the other side, it is useful to be able to make this concession without fear that it can then be provided to court as evidence.

If there is no dispute, or you are not conceding anything, there is no need to mark correspondence in this manner.

Genuine attempts to settle negotiations are automatically made without prejudice. However, it is still advisable to mark documents where appropriate: if the other side attempts to use the correspondence as evidence in court, it may be that there is an initial presumption that the correspondence was ‘open.’

Off the record

Solicitors may feel a longing to embark on a career change to journalism, but they can’t make use of ‘off the record’ conversations, particularly with opposing parties.

This term has no real legal meaning and should not be relied upon in any calls or conversations with the other side, for example when looking to settle. Instead, you should agree with the other side that the discussion be without prejudice (or not, depending on your position).

The term also does not absolve you from your professional and regulatory obligations; if you are told something ‘off the record’ which it would be in your client’s best interests to discuss with them, you are duty-bound to do so.

Privilege

Privilege, in legal terms, is simply the right to withhold evidence from a third party or from the court. There are a number of ‘types’ of privilege, but each provide the absolute right to withhold the relevant material.

Litigation privilege

Litigation privilege applies during litigation (the clue is in the name) but to apply to a document it must:

• Be made for the main purpose of litigation, and relate to existing or pending litigation.
• Be a communication between the client and the lawyer, or between them and a third party.
• Be confidential.

If the question arises you will need to demonstrate the above to prove that that litigation privilege applies.

Practically, you may need to rely on litigation privilege when seeking advice from third party professionals or similar (but be aware only communications where a lawyer is involved can attract privilege). Correspondence is therefore recommended to be marked ‘privileged and confidential’ so that there is proof of the intention behind the correspondence and no room for any doubt.

Legal advice privilege

Legal advice privilege protects confidential communications between the client and their lawyer, when the purpose of the communication is to give or receive legal advice ‘about what should prudently and sensibly be done in the relevant legal context’. The purpose of this form of privilege is for clients to have confidence that discussions with their lawyer will remain confidential.

Of course, legal advice privilege does not apply to everything a client may tell you. You should be aware of your duties to report, for example, suspicious activities under the Proceeds of Crime Act 2002 or the Terrorism Act 2000.

Joint & Common interest privilege

Common interest privilege serves to retain privilege when disclosing documents to third parties, who have a common interest in the document or topic.

Joint privilege arises where two or more parties retain the same lawyer to advise them; alternatively, where two parties could have instructed the same solicitor, for example a company and its shareholders. This is based on their joint interest in the subject matter of the privileged document.

Qualified privilege & Absolute privilege

These terms are generally less applicable to the day-day of life a lawyer, but important to understand.

Qualified privilege is made up of two types: statutory and common law.

Statutory qualified privilege protects the publication of any fair and accurate report or statement on a matter of public interest as set out in Schedule 1 of the Defamation Act 1996.

Common law qualified privilege protects statements where there is a reciprocal relationship of duty and interest between the parties. This includes complaints made to the police, or providing an employment reference. The party making the statement might have a moral or social duty to raise their concerns about another.

Absolute privilege provides a complete defence to any action of defamation. It arises in judicial proceedings, and between a solicitor and their client. Members of Parliament are also protected.

Confidentiality

Terms such as 'confidential,’ ‘private and confidential,’ ‘for the addressee’s eyes only’ and other variations of the same theme all carry the same meaning and have no particular legal bearing. However, they do help to ensure that a letter is seen only be its intended recipient.

Waiving or losing privilege

There are a few scenarios where privilege will no longer take effect:

• If the right is expressly waived by the client, or by their lawyer on their behalf;
• If the privileged document is disclosed, or otherwise loses its confidentiality.
• By the implied waiving of privilege, for example where a client brings a professional negligence claim against their solicitor, there is an implied waiving of rights so that the court can examine the hitherto privileged evidence.
• Collateral waivers: when disclosing a document, the party may need to disclose other documents to avoid providing an incomplete view of the evidence.
• Inadvertent disclosure: where a party has mistakenly allowed a privileged document to be reviewed.

Potential misuse of terms

These kinds of terms can be misused when corresponding with non-lawyers. SRA guidance published in April 2024 focused on legal threats made by solicitors and law firms. This guidance was published in response to the concerns raised around Strategic Lawsuits Against Public Participation (or SLAPPs).

The SRA pointed out that the labels above, such as ‘private and confidential’, ‘not for publication’, and ‘without prejudice’, were being used to mislead recipients. The letters often indicated that there would be adverse consequences for the recipient if they were to publicise it.

The SRA expects solicitors to consider carefully their use of such labels, and to explain them if necessary. They warn solicitors against leading recipients into believing that they are not allowed to seek legal advice.

In closing

It is hoped that this article has helped to shed light on the smorgasbord of terms that we lawyers like to attach to letters. It might be considered that the profession should be moving away from inaccessible terms such as these. In the mean-time, we may need to settle for their correct usage.