UK Law and Practice Contributed by: Samantha Ward, Ben Jasper, Oliver Carroll and Bethany Downey, Clifford Chance LLP
Pre-Action Disclosure This may be ordered before a claim is issued. Parties are encouraged to agree to exchange documents pre- action in order to seek to resolve legal disputes before proceedings are commenced. Pre-action disclosure may be ordered where the documents or classes of documents to be disclosed would fall within the test for standard disclosure, and the court believes that pre-action disclosure is desirable to dispose fairly of anticipated proceedings or to assist in the resolu - tion of the dispute without proceedings or at a lower cost. Applications for pre-action disclosure that are overly broad will be refused, so potential claimants should carefully consider the scope of any requests they make. With the introduction of the Disclosure Practice Direc - tion 57AD (formerly the Disclosure Pilot) in the busi - ness and property courts of England and Wales, there has been a change to the disclosure regime; however, the Direction does not currently apply to competition law claims, unless otherwise ordered. See 6.3 Leniency and Settlement Agreements in rela- tion to leniency statements and settlement submis - sions. Restriction on Documents There is a general restriction on parties not to use documents received during disclosure other than for the purpose of the litigation. However, if those docu - ments are referred to in open court, then this protec - tion may be lost. Confidential and irrelevant material may be redacted, although significant redaction may be resisted by the court. Confidential material may also be protected by way of a “confidentiality ring”, in which only specified persons will be permitted to access these documents. 6.2 Legal Professional Privilege Documents may be withheld from inspection on the basis that they are protected by legal professional privilege, which falls into two broad categories: • legal advice privilege; and • litigation privilege.
Legal Advice Privilege Legal advice privilege protects communications which are: • confidential; • between a client and lawyer; and • made for the dominant purpose of giving or receiv - ing legal advice. Confidentiality is key – if a communication has become public, been shared with a third party (on a non-limited waiver basis), or been circulated widely, it will no longer be privileged. The communication must be between lawyer and cli - ent, for the purposes of which a “lawyer” includes both external and in-house counsel, who may be qual - ified in any jurisdiction. The definition of a “client” for the purposes of privilege includes those authorised to give and receive legal advice (following Three Riv- ers No 5), rather than all employees within the under - taking. In SFO v ENRC [2018] EWCA Civ 2006, the Court of Appeal held that communications between an employee and the corporation’s lawyers could only be privileged if that employee was tasked with seek - ing and receiving advice on behalf of the corporation. The dominant purpose of the communication must be the giving or receiving of legal advice ( R (Jet2) v CAA [2020] EWCA Civ 35). Litigation Privilege Litigation privilege applies to confidential communi - cations between a lawyer and client and communi - cations between a lawyer or client and a third party which come into existence after litigation is contem - plated. The communication must be for the sole or dominant purpose of: • obtaining or giving legal advice in relation to the litigation; • obtaining evidence to be used in litigation; or • obtaining information that may lead to the obtain - ing of evidence. In Tesco Stores v OFT [2012] CAT 6, the CAT found that proceedings were sufficiently adversarial, at least by the time that the OFT had issued a statement of objections. In SFO v ENRC [2018] EWCA Civ 2006, the
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