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27 May 2022 / Mark Solon
Issue: 7980 / Categories: Features , Profession , Expert Witness
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The expert’s secret?

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Legal privilege: with rights come responsibilities, as Mark Solon explains
  • A look at the two main types of legal privilege: legal advice privilege & litigation privilege.
  • Recent cases where legal privilege has been disputed.

Legal privilege is an important legal right but, as with any right, there are responsibilities. There are rules to be followed before privilege applies and not all communications between lawyers and experts will be protected to allow the communications to remain secret. The case of Kyla Shipping Co. Ltd v Freight Trading Ltd and others [2022] EWHC 376 (Comm) has some useful guidance.

There are two main types of privilege: legal advice privilege and litigation privilege, each with its own rules. Legal advice privilege, that is confidential communications between lawyers and clients for the purpose of giving or receiving legal advice, was not in dispute.

Litigation privilege protects confidential written or oral communications between lawyers, their clients and third parties—in this case an expert witness. The privilege includes documents created by or on behalf of the lawyer or client, which come into existence when litigation is in contemplation

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