The concept of privilege gives clients the peace of mind to divulge all relevant information to their legal representatives without the fear that doing so will be detrimental to their legal position. This is particularly relevant in financial remedy proceedings on divorce as there is an ongoing requirement of full and frank disclosure. In this article, Hannah McCrindle, an associate, and Finn Smith, a trainee solicitor, examine privilege in family proceedings.

Privilege in legal proceedings has long been viewed as an integral part of a fair justice system. In legitimate circumstances, it entitles parties to circumvent the production of evidence to third parties or the court.

Common law recognises that communications between a lawyer and their client are confidential, and cannot be raised in court or disclosed to the opposing party without the client’s prior consent. This doctrine is crucial to preserving the privacy and confidentiality of documents and communications that might otherwise betray strategy, procedural intentions or legal advice.

There are a number of types of privilege upon which parties can rely. The most commonly invoked, and most relevant to family law proceedings, are:

1. Legal professional privilege, and
2. Without prejudice privilege.

Legal professional privilege

Legal professional privilege is broken down into two sub-categories:

1. Legal advice privilege, and
2. Litigation privilege.

Legal advice privilege

It is a fundamental right that individuals have access to confidential and privileged legal advice. As such, parties who instruct a lawyer can seek to rely on legal advice privilege to protect against the disclosure of confidential communications between themselves and their lawyer. Litigation does not have to be in process, nor in contemplation, for this privilege to apply.

The nature and purpose of any communications between lawyer and client determine whether legal advice privilege can be relied upon or not. The test required to establish this privilege was considered in the recent judgment of Civil Aviation Authority v R (on behalf of the application of Jet2.com Ltd) [2020] EWCA Civ 35.

The Court of Appeal held that in order to claim legal advice privilege, parties would have to satisfy a three-part test. Namely:

1. Communications between the client and their lawyer have to be confidential,
2. Such communications must either be in the search of or provision of legal advice, and
3. Such legal advice must be the dominant purpose for creating the communication (the dominant purpose test).

This dominant purpose test was introduced by the Jet 2 judgment, offering clarity to an area about which previous authorities had been evasive or non-committal. You can read a more in-depth analysis of this case here.

Is all correspondence between lawyer and client privileged?

Most family law cases involve scores of emails between lawyer and client, and the disclosure of countless documents. The disclosure burden attached to the completion of Form E during financial proceedings is a prime example. (Form E is the detailed document the parties are required to complete to assist in finalising financial matters in court following a divorce.)

While emails and communications that have the dominant purpose of seeking or providing legal advice are likely to attract legal advice privilege, this is not the case for all communications. If the three-part test is not satisfied in relation to certain communications requested by the court or opposing side, it would not be possible to avoid disclosure by arguing that they are privileged.

In respect of the disclosure of documents, while a document created for a legal matter will attract privilege, pre-existing documents may not. Providing a document to a lawyer for the purposes of negotiation or litigation does not automatically make it privileged. The other criteria still have to be satisfied, including the fact that it must be confidential. If a document is available in the public domain or has been publicised in any way, it will not attract privilege.

Litigation privilege

Litigation privilege is an alternate form of legal professional privilege, and, unlike legal advice privilege, extends beyond communications between clients and their lawyers to include communications with third parties.

Although litigation privilege covers a broader range of communications than legal advice privilege, it can only be invoked in litigious matters.

The following criteria must apply to benefit from the protection of litigation privilege:

1. It must be a communication between a lawyer and/or a client and/or a third party,
2. It must have been created at a time when litigation was pending, reasonably contemplated or existing (it is not enough for litigation to be a mere possibility), and
3. It must have been created for the dominant purpose of litigation.

How does this apply to family law proceedings?

Family law can be extremely litigious. It is sadly not the case that all divorce, financial remedy and children proceedings are dealt with amicably and without the need for the court’s involvement.

When parties go to court, there are a host of situations where there may be communications with a third party. These could be with an estate agent valuing the family home, a pension specialist advising on the best investment routes for a pension sharing order, an accountant disentangling complex business assets or a witness due to provide evidence at a final hearing. All of these situations will require correspondence that satisfies the criteria to be protected by litigation privilege.

Litigation, by definition, is adversarial. It is, therefore, likely that pre- or post-nuptial agreements and other non-adversarial aspects of family law do not fall under the protection of litigation privilege.

Without prejudice privilege

Without prejudice privilege is referred to frequently in family law proceedings. One reason for this is that under the Family Procedure Rules 2010, before a Financial Dispute Resolution hearing takes place during financial remedy proceedings, the parties are required to exchange without prejudice offers (also known as Calderbank offers).

This type of privilege has a broader scope than legal professional privilege, as it extends to discussions and correspondence between the parties and their legal advisors. As the purpose of this privilege is to enable parties to avoid litigation wherever possible, it is only available to correspondence that specifically relates to a genuine attempt to settle a case. Marking a document “without prejudice” is not enough to establish the privilege. For this reason, all discussions covered in mediation sessions are covered by this type of privilege.

Confidentiality vs disclosure: When our duties collide

As lawyers, we have certain duties that we have to uphold. When our duty of confidentiality to a client comes into conflict with our duty of disclosure not to knowingly mislead the court, we have to assess the extent to which privilege can be relied upon.

The Supreme Court considered the issue of disclosure in the leading cases of Sharland v Sharland [2015] 2 FLR 1367 and Gohil v Gohil [2015] 2 FLR 1289. They held that:

1. A recital in a financial order that limits disclosure (as in Gohil) has no legal effect,
2. Each party owes a duty to the court to make full and frank disclosure of their resources,
3. One party cannot exonerate another party from complying with the duty of disclosure, and
4. A party has a duty to the other party to provide full and frank disclosure in addition to their duty to the court.

There are countless situations in family law where it may benefit a party not to disclose a material fact or some of their assets, or even to move the ownership or jurisdiction of their assets. If this became apparent to a lawyer, their duty to the court would take precedence over their duty to their client, and they would have to cease to act for their client.

Other examples of situations where privilege will not apply include:

• Where an individual discloses incorrect or inaccurate information during a disclosure process,
• Where an individual withholds relevant material in financial remedy proceedings because disclosure may reveal the commission of a criminal offence,
• While communications and documents produced during mediation are confidential and, therefore, privileged, this cannot be used as an opportunity for a client to admit to ownership of certain assets and then later deny it. Mediation cannot be used as a veil for impropriety,
• While the details of any consultation between a lawyer and a client are confidential and, therefore, privileged, the fact that they had a consultation and the timing of that consultation is not. If a lawyer is requested to disclose when their client first sought legal advice, this detail cannot be protected by privilege.

Conclusion

Though a key source of protection within family law proceedings, privilege is not an unqualified right and solicitors cannot be complicit in misleading the court when claiming privilege on their client’s behalf. However, where the necessary conditions are met, privilege enables parties to speak candidly with their lawyers and with each other during settlement negotiations. As such, privilege is designed to preserve confidentiality, protect parties’ positions and promote successful settlements where possible.

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