UK Law and Practice Contributed by: Samantha Ward, Ben Jasper, Ryan Byrne and Chloe Lettington, Clifford Chance LLP
evant material may be redacted – although significant redaction may be resisted by the court and confiden - tial material may also be protected via a “confidential - ity ring” limiting access to specified persons (see the CAT’s Practice Direction 2/2026 on the Management of Confidential Information). 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 that 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 becomes public, is shared with a third party (other than on a non-limited waiver basis) or is widely circulated, it is no longer privileged. The communication must be between lawyer and cli - ent; “lawyer” includes external and in-house counsel qualified in any jurisdiction. “Client” for privilege pur - poses includes those authorised to give and receive legal advice (following Three Rivers No 5), not all employees of the undertaking. In SFO v ENRC (2018) EWCA Civ 2006, the court of appeal held that employ - ee–lawyer communications are privileged only if the employee was tasked with seeking or receiving advice on the corporation’s behalf. The dominant purpose must be giving or receiving 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 between a lawyer or client and a third party – that come into existence after litigation is contemplated. The com -
munication 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 the 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 by the time the Office of Fair Trading (OFT) had issued a statement of objections. In SFO v ENRC (2018) EWCA Civ 2006, the court of appeal found that where the Serious Fraud Office had made the prospect of crimi - nal prosecution clear to the defendant – and lawyers had been engaged – a basis for concluding criminal prosecution was in reasonable contemplation. 6.3 Leniency and Settlement Agreements Leniency statements and settlement agreements are protected from disclosure under Part 6 of the 2017 UK Regulations implementing the EU Damages Directive. Claims Issued On or After 9 March 2017 For claims issued wholly on or after 9 March 2017, the CA 1998 prohibits a court or tribunal from making a disclosure order in respect of a settlement submis - sion that has not been withdrawn or in respect of a cartel leniency statement. In addition, a competition authority’s investigation materials are not admissible as evidence in competition proceedings at any time before the competition authority has closed the inves - tigation, unless a party obtains them lawfully and by means other than from the authority’s file. Claims Issued Prior to 9 March 2017 For cases that began prior to 9 March 2017, the posi - tion is governed by case law. The ECJ held in Pflei - derer v Bundeskartellamt that EU law allows member state courts and tribunals to determine when materials may be disclosed. In National Grid Electricity Trans- mission plc v ABB Ltd (2012) EWHC 869 (Ch), the High Court balanced disclosure against confidentiality of leniency and investigation materials by reference to:
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