Legal Professional Privilege in the 21st Century: Adversarialism, Confidentiality and Justice

The Northumbria Centre for Evidence and Criminal Justice Studies (NCECJS)

Northumbria Law School, University of Northumbria, Newcastle-upon-Tyne

Friday 26th April 2024

Legal professional privilege is entrenched as a fundamental human right. It has two limbs: legal advice privilege preserves the confidentiality of lawyer /client communications and litigation privilege preserves confidentiality in communications with expert witnesses and witnesses of fact. Litigation privilege has its origins in traditional concepts of adversarial litigation. 

The rationale for legal advice privilege is essentially that it is in the public interest that persons manage their affairs in accordance with the law, that in order to do so they need legal advice and that if they believed that communications with their legal advisers might be disclosed to a court against their will, they might not obtain such advice. To the extent to which litigation privilege extends beyond protecting communications between legal adviser and client, its rationale is founded in the adversarial nature of litigation and the notion that parties should be able to keep their cases secret unless and until they want to “play their cards”. 

In Three Rivers District Council and Others v Governor and Company of the Bank of England (No 6) [2005] 1 AC 610 at para 29, Lord Scott of Foscote questioned why legal professional privilege in its litigation privilege form should attach to “documents or communications which although having the requisite connection with litigation neither constitute nor disclose the seeking or giving of legal advice”. He noted that following In re L (A Minor) (Police Investigation: Privilege) [1997] AC 16 (a decision relating to care proceedings) litigation privilege only operated in the context of adversarial proceedings and suggested that “Civil litigation conducted pursuant to the current Civil Procedure Rules is in many respects no longer adversarial”. He concluded that “[t]he decision in In Re L warrants, in my opinion, a new look at the justification for litigation privilege.”

This seminar, funded by the Modern Law Review, brings together academics, practitioners and expert witnesses from law, forensic science and forensic psychiatry to consider the legitimacy of the litigation privilege limb. The seminar will provide a forum for new research that will inform the debate between those who favour retaining a broad privilege and those who believe that the interests of justice require that a court or tribunal possesses all relevant information. These policy issues will be examined in the context of criminal and civil proceedings.

This event is free to attend. Please register via the link below. Delegates can attend in person, or online via Teams. Deadline for registration is Friday 12th April.

Further Information

• Registration
• Travelling to Newcastle upon Tyne
• Programme 
• Contact Information