ReSolution Issue 20, February 2019 | Page 21

individuals for the purpose of obtaining legal advice or evidence in relation to the litigation it would not be privileged. That cannot be right.
What steps can parties take?

A key priority should be to raise awareness of this issue within the organisation. The message should be spread that internal communications prepared to discuss options for settlement may not be protected and may have to be disclosed (assuming they are not for the dominant purpose of obtaining advice or information relating to settlement, and cannot be said to evidence the settlement negotiations themselves).

The same applies to other aspects of litigation, such as discussing litigation strategy, or reputation management relating to the litigation, or the funding of the litigation. Such communications will not be privileged unless they are for the dominant purpose of obtaining advice or information relating to the conduct of the litigation. Even then, any internal communications in this category will be vulnerable if litigation privilege is restricted to third party communications.

Where possible, such documents should be prepared as lawyer/client communications seeking or obtaining legal advice, so that they may benefit from the protection of legal advice privilege. This has the added benefit that they will be protected even if litigation privilege is denied to internal corporate communications.

Alternatively, privilege may be available to the extent that advice or information obtained for the conduct (including the settlement) of litigation cannot be disentangled from the documents or they otherwise reveal such advice or information. But parties should exercise caution. There may be a fine line between documents from which such advice or information cannot be disentangled, and those where a court might consider that redaction is appropriate.

This piece first appeared on the Practical Law Dispute Resolution Blog on 15 January 2019.

ABOUT THE AUTHOR

Maura McIntosh
Professional support consultant at Herbert Smith Freehills
London

Herbert Smith Freehills is one of the world’s leading professional services businesses, bringing together the best people across 27 offices, to meet all your legal services needs globally.