S42: Legal professional privilege

Summary

  • Legal professional privilege is a common law concept developed by the courts rather than one which is set out in an Act of Parliament. There is no attempt to define the term in the FOI Act. Common law concepts, by their very nature, are not defined in statute. The scope may change with time as the courts further develop the concept;
  • The principle is based upon the need to protect a client’s confidence that any communication with his/her professional legal advisor will be treated 'in confidence' and not revealed without consent. This is considered key to the judicial system and an important guarantor of the right to a fair trial;
  • For legal professional privilege to apply, information must have been created or brought together for the dominant purpose of litigation or the seeking or provision of legal advice;
  • Where a lawyer is being asked, in his professional capacity to provide legal advice, privilege will arise almost regardless of the subject matter on which the advice is being sought;
  • Where legal advice has served its purpose, litigation has ended or the possibility of litigation has ended, although legal privilege could still be claimed, there may be a stronger public interest argument in favour of disclosure particularly if, in fact, no harm would be created. Insofar as the legal advice had been supported by a court and there is no likelihood of appeal, it may be in the public interest to make the full advice more available;
  • Qualified exemption, therefore consideration of the public interest test is required;
  • Duty to confirm or deny whether the information exists does not arise if this would involve the disclosure of any information that should be maintained in legal proceedings.

Examples of information that may fall under this exemption:

Communications with qualified solicitors, barristers and licensed conveyancers.

Sources of further information

More detailed guidance notes about this exemption can be found by viewing the following links: