In the last year there have been several interesting cases on the practical application of the law of legal professional privilege, including litigation privilege and legal advice privilege, in a civil disputes context.
In one such case, involving West Ham United Football Club and the owner of the London Stadium where they play their football, the Court refused to uphold the owner's claim to litigation privilege in respect of internal discussions about potential settlement of the case, and the documentation was disclosed to the other side. In another case, Bullough v the Royal Bank of Scotland plc, the Court decided that the Pursuers had not waived their right to claim legal advice privilege and so the documentation was not disclosed.
Both judgments considered the issues surrounding the separation of privileged information from non-privileged information where it is contained in one document. In particular the courts looked at:
- how to identify privileged information, including where it is mingled with non-privileged information in one document; and
- whether you can disclose part of a document containing privileged information without having to disclose the rest.