Yes.  The equivalent in England and Wales is called Legal Advice Privilege (“LAP”).  LAP applies to confidential communications made between a lawyer and the lawyer’s client for the purpose of giving or receiving legal advice.  Once LAP attaches to a communication, whether it be oral or written, a substantive right exists to withhold the communication from third parties and the court, subject to certain exceptions. The privilege is that of the client’s, and therefore, only the client is able to waive it [See Quinn Direct Insurance Ltd v Law Society of England and Wales [2010] EWCA Civ 805]. 

Under the ‘Working Papers’ doctrine, LAP also attaches to a lawyer’s drafts of documents and memoranda prepared in the course of giving legal advice regardless of whether these documents are ultimately communicated to the client [See Three Rivers DC v Bank of England (No 5) [2003] EWCA Civ 474].  However, this is generally not the case in respect of documents prepared by the client that were not intended to be transmitted to the lawyer. 

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There is no distinction made when applying LAP in civil and criminal proceedings.  Once the privilege exists, unless waived or lost, the right to withhold the privileged material is absolute [See Addlesee and others v Dentons Europe LLP [2019] EWCA Civ 1600]. 

Government authorities may not require the disclosure of material covered by Legal Professional Privilege (“LPP”) (this includes both LAP and litigation privilege, which is discussed further below).  This is often demonstrated by specific “carve-outs” within the statutory provisions that confer compulsory powers on authorities.  For example, the Serious Fraud Office’s powers of compulsion are limited by Section 2(9) of the Criminal Justice Act 1987, which states that “[a] person shall not under this section be required to disclose any information or produce any document which he would be entitled to refuse to disclose or produce on grounds of legal professional privilege…”.  A similar “carve-out” can be found in Section 413 of the Financial Services and Markets Act 2000 for the Financial Conduct Authority.  Further, under Section 330 of the Proceeds of Crime Act, disclosure of the knowledge or suspicion of money laundering is not required if the knowledge or suspicion is acquired in privileged circumstances.     

However, there are certain circumstances when the “carve-out” provision will not apply, most notably ‘the crime-fraud exception’ – when the information or advice is communicated with the intent to further a criminal purpose [See JSC BTA Bank v Ablyazou and others [2014] EWHC 2788 (Comm)].  In this case, the “carve-outs” do not apply because the underlying material never attracted LPP to begin with [See Section E below for a further discussion on the crime-fraud exception].  Another exception to privilege relates to covert surveillance of communication between a lawyer and client under Section 28(3) of the Regulation of Investigatory Powers Act 2000, when the surveillance in question is in the interests of national security and the prevention or detection of serious crime.  Some other statutory exceptions to privilege include certain powers of seizure under Section 50 of the Criminal Justice and Police Act 2001; care proceedings brought under the Children Act of 1989; and privileged materials related to a bankrupt’s estate under the Insolvency Act 1986.  A few non-statutory exceptions where privilege would not apply involve circumstances where one party has a better right over the privileged material than the party claiming privilege; where one party has gained knowledge of the privileged material and could provide secondary evidence as to its contents; and where a lawyer is under investigation by their regulator. [See Bankim Thanki QC, The Law of Privilege, (3rd edn.), Section 4(c) for a more detailed look at the general and statutory exceptions to privilege.]  

Although the government and other agencies are unable to force disclosure of privileged material, there may be circumstances where a client wishes to disclose privileged material to certain third parties, including authorities, but not to provide a general waiver and lose privilege over it in the future.  This can be achieved by providing a limited waiver of privilege, which is a principle recognized in English law.  A limited waiver allows for the disclosure of privileged material for a limited and defined purpose, preserving the confidentiality and privilege over the material or information as against the rest of the world.  The limited waiver need not be express, as long as it could reasonably be understood to be implied with reference to all of the circumstances [See Berezovsky v Hine [2011] EWCA Civ 1089].  

The test for who constitutes ‘the client’ within an organization for the purposes of LAP is set out in Three Rivers (No 5) and is quite restrictive in its approach.  Rather than the client being defined as the corporate entity which engaged the lawyer, the Court of Appeal held that the meaning of ‘client’ is limited to those within the client organization who are authorized to seek and receive legal advice on its behalf.  Therefore, documents or communications prepared by employees not so authorized, even those used by the lawyer to provide legal advice, may not be protected by LAP.  

In 2016, the High Court applied this narrow test when deciding the right to assert LAP over records of employee interviews conducted as part of the bank’s internal investigation [See The RBS Rights Issue Litigation [2016] EWHC 3161 (Ch)].  The court in RBS restricted the privilege to a limited group of individuals at the bank who were charged to instruct the lawyer and receive legal advice.  Therefore, the interview notes were not covered by LAP as they related to interviews of employees who did not form part of ‘the client’. 

It is important to note that more recently the Court of Appeal expressed its openness to depart from the test set out in Three Rivers (No. 5), but concluded that it was a matter for the Supreme Court to consider in the future [See Director of the Serious Fraud Office v Eurasian Natural Resources Corporation Ltd [2018] EWCA Civ 2006 (“SFO v ENRC”)]. 

Although an in-house counsel is not expected to meet a higher burden than external counsel in establishing privilege over communications, only the communications made by the in-house counsel acting in a legal capacity will be covered by privilege.  In many cases, in-house counsel will also provide strategic business, management, or even administrative advice to the company, and privilege is unlikely to attach to communications relating to these functions.  It is good practice for in-house lawyers to avoid mixing non-legal and legal communications in the same document, as this could inadvertently lead to the loss of privilege over the entire document.

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There are two types of privilege recognized under English law that allow a party to disclose privileged communications to another party who has a shared interest without waiving privilege over the communication as against any other party.  The first is joint privilege, which requires the joint interest to exist at the time the privileged communication is created.  The second is common interest privilege, which requires the common interest to exist at the time the privileged communication is disclosed.  Both privileges apply to LAP and litigation privilege.  Unfortunately, the case law tends to use these terms interchangeably, which creates confusion when articulating the precise circumstances in which each arises.  However, some basic principles and distinctions between the two are set out below.       

Joint privilege arises when either two or more parties jointly retain the same lawyer, or have a joint interest in the subject matter of the privileged material, or the litigation in which it relates, at the time it came into existence [See Commercial Union Assurance Co plc v Mander [1996] 2 Lloyd’s Rep 640].  If a third party establishes a joint interest that gives rise to joint privilege, the third party will be able to assert privilege over the communication as against the world, except he will be unable to assert privilege against any party sharing the joint interest.  The third-party will also enjoy a right to access the communication and potentially other privileged communications that concern the joint interest.  Generally, the waiver of privilege over communications that are protected by joint privilege requires consent from all of the parties who enjoy the joint interest.  Common examples of relationships that have been held to attract joint privilege include a trustee and beneficiary, a company and its subsidiaries, and a company and its director or shareholders.   

Common interest privilege was first recognized in 1981 by the Court of Appeal and operates to preserve the privilege over voluntary communications disclosed to third parties who have a common interest in the subject matter of the communications or the litigation in connection with which the communications were created [See Buttes Gas and Oil Co v Hammer (No 3) [1981] QB 223; Svenska Handelsbanken v Sun Alliance and London Insurance plc [1995] 2 Lloyd’s Rep 84].  For common interest privilege to apply the common interest must exist at the time the communication is disclosed to the third party.  Once established, the disclosing party does not waive his privilege over the communication and the third party is able to assert the same privilege over the communication as against the world.  

One important distinction between joint and common interest privilege is that the latter does not require the disclosing party to obtain consent from the other parties with the common interest in order to waive the privilege.  In other words, the original privilege holder alone is capable of waiving the privilege, barring any contractual agreement between the parties providing otherwise.  Some examples of relationships where a common interest privilege may exist include insurer and insured, a company and its subsidiaries, a principal and its agent, and a liquidator and creditors.  Common interest privilege also frequently arises between parties to a litigation and their litigation funders (see below for further detail).     

Although there is no requirement that a joint or common interest agreement be in writing, it is always beneficial to demonstrate that a joint or common interest exists by express written term

Litigation or third-party funding is permitted in England and Wales.  However, it is currently not a formally regulated market.  Instead, the industry is self-regulated by the Association of Litigation Funders (“ALF”), an independent body charged by the Ministry of Justice (“MoJ”) to “define[] and maintain[] best practice in the ligation funding industry…, and in so doing [it] promotes access to justice for claimants looking for alternative financing in order to resolve disputes.” [See AssociationofLitigationFunders.com].  In November 2011, the Civil Justice Council, an agency of the MoJ, published the Code of Conduct for Litigation Funders, which sets out standards that members of the ALF must abide by.  These include requirements to maintain adequate capital to meet funding obligations, to refrain from influencing the litigation or settlement negotiations, and to withdraw from the agreement only in specific circumstances.  The code has subsequently been revised in 2014 and in 2016, now requiring members to undergo an annual audit and introducing a new complaints procedure.  Although voluntary for non-member litigation funders, if a funder is seeking to become an ALF member, compliance with the code is mandatory.

It is the general view that communications with a litigation or third party funder are protected by litigation privilege or through the common interest doctrine (as discussed above).  For litigation privilege to subsist, the communications with the funder must be made for the dominant purpose of obtaining information in connection with reasonably anticipated or actual litigation, or in aid of such litigation (discussed further below).  They must also be made on a confidential basis.  To be safe, any disclosure should be made subject to express terms of confidentiality and excepting waiver.  Even without such an undertaking, common interest privilege may apply, however it is advisable that the parties enter into a common interest agreement to avoid uncertainty. 

The courts have also held that the terms of the litigation funding agreement are protected by LAP, if the agreement “would or might give the other side an indication of the advice which was being sought or the advice which was being given” [See Excalibur Ventures LLC v Texas Keystone Inc [2012] EWHC 2176 QB].  In 2017, the English High Court affirmed this position in In the Matter of Edwardian Group Limited [2017] EWHC 2806 Ch, in which an application for the disclosure of a litigation funding agreement was rejected.  Drawing on prior case law, Morgan J held that LAP applied to litigation funding agreements that “gave a clue to the advice given by the solicitor” [Lyell v Kennedy (No. 3) (1884) 27 Ch D 1], or “betray[ed] the trend of the advice which [the solicitor] is giving the client” [Ventouris v Mountain [1991] 1 WLR 607]. 
 

The crime-fraud exception is recognized in England and Wales and applies to both LAP and litigation privilege [See Kuwait Airways Corporation v Iraqi Airways Company [2005] EWCA Civ 286].

The crime-fraud exception is a common law principle and is also reflected in Section 10(2) of the Police and Criminal Evidence Act 1984 which states that “[i]tems held with the intention of furthering a criminal purpose are not items subject to legal privilege”.  A significant decision reflecting the rationale for the exception is R v Cox and Railton, in which two defendants appealed their convictions for conspiracy to defraud on the basis that evidence of the solicitor who had been consulted, was improperly admitted.  Upholding the convictions, Stephen J held:

“The reason on which the rule [of privilege] is said to rest cannot include the case of communications, criminal in themselves, or intended to further any criminal purpose, for the protection of such communications, cannot possibly be otherwise than injurious to the interests of justice, and to those of administration of justice. Nor do such communications fall within the terms of the rule.” [[1884] 14 QBD 153, 167]

More recently, the principle was summarized in Kuwait Airways Corporation v Iraqi Airways Company, where the court stated, “if a person consults a solicitor in the furtherance of a criminal purpose then, whether or not the solicitor knowingly assists in the furtherance of such purpose, the communications between the client (or his agent) and the solicitor do not attract legal professional privilege.” [[2005] EWCA Civ 286, para 14].  The exception applies even if the lawyer is innocent, and in circumstances where the client is innocent and being used as a tool by the fraudster to perpetrate the crime [See R v Central Criminal Court, ex p Francis & Francis (A Firm) [1989] AC 346].

In England and Wales Litigation Privilege (“LP”) is broadly equivalent to the work product doctrine in the United States, protecting certain communications from disclosure if made when litigation is pending or contemplated.  

Communications, whether oral or written, are protected by LP when they are made (i) between a lawyer and a client, or between either of them and a third party; (ii) for the sole or dominant purpose of litigation; and (ii) in relation to reasonably contemplated, pending or existing litigation.  In general, the communications must also be confidential [See Bankim Thanki QC, The Law of Privilege (3rd edn.), Sections 3.34-3.44 for why confidentiality as a necessary precondition for LP is not without controversy].  Similar to LAP, LP belongs to the client, and therefore cannot be asserted or waived by the lawyer or third party.  Unlike LAP, LP extends to communications with third parties, as long as they are made for the dominant purpose of litigation and litigation is at least in reasonable contemplation.  

Documents are frequently produced for multiple reasons and therefore issues can arise when trying to prove that the document’s dominant purpose is litigation.  In a recent High Court decision, four principles were established relevant to the dominant purpose test: (i) the party asserting the privilege must “show that the communications were ‘seeking evidence or obtaining evidence or information to be used in or in connection with anticipated or contemplated proceedings’”; (ii) “where communications may have taken place for a number of purposes it is incumbent on the party claiming privilege to establish the dominant purpose was litigation”; (iii) the purpose must be assessed objectively; and (iv) “the court must take a realistic and commercial view” [See Skymist Holdings Ltd v Grandlane Developments Ltd [2019] EWHC 1834 (Comm)]. 

Issues can also arise in determining whether litigation is deemed to be within reasonable contemplation.  In Three Rivers (No 6), the court stated that in order to establish LP, “litigation must be adversarial, not investigative or inquisitorial” in nature [See Three Rivers District Council and others v Governor and Company of the Bank of England (No 6) [2004] UKHL 48].  But at which point does a proceeding become ‘adversarial’ so that LP applies?  In September 2018, the Court of Appeal gave some comfort to the investigation space when it overturned the High Court’s ruling in SFO v ENRC that an SFO investigation was not to be treated as an adversarial proceeding in relation to LP.  Instead, the Court of Appeal found that litigation was in a company’s reasonable contemplation at the time the SFO initiated its investigation against that company, therefore protecting the documents generated by ENRC’s solicitors and third parties during its internal investigation.    For a more detailed discussion of SFO v ENRC click here.  

In 2013, the Supreme Court confirmed that LAP only attaches to legal advice given by members of the legal profession and therefore does not extend to the same advice given by members of any other profession, including accountants [See R (Prudential plc and another) v Special Commissioner of Income Tax and another [2013] UKSC 1].  The justices made clear that a change in the law would need to come from Parliament as a specific statutory exception.  In fact, Parliament has conferred some limited privilege rights on advice given by certain other professionals including patent agents, stipulated under the Civil Evidence Act 1968 and the Copyright, Designs and Patents Act 1988, along with trademark agents and licensed conveyancers under the Trade Marks Act 1994 and the Administration of Justice Act 1985, respectively.  

Although there is no specific mediation privilege, the English courts have observed that mediation is a form of without prejudice negotiation and therefore without prejudice privilege (described further below) applies [See Brown v Rice [2008] FSR 3].  For example, upon granting an interlocutory injunction to prevent the disclosure of discussions during the course of a mediation, the court stressed that “[t]he whole point of mediation proceedings is that the parties can be frank and open with each other and that what is revealed in the course of the mediation proceedings is not to be used for or against either party in the litigation, if mediation proceedings fail” [See Venture Investment Placement v Hall [2005] EWHC 1227].

The without prejudice rule “applies to exclude all negotiations genuinely aimed at settlement whether oral or in writing from being given in evidence” [See Rush & Tompkins Ltd v Greater London Council and Another [1989] 1 AC 1280]. This includes communications made between parties to either a civil or regulatory dispute [See Property Alliance Group Ltd v Royal Bank of Scotland Plc [2015] EWHC 1557 (Ch)].  The rationale and public policy considerations for the without prejudice rule rest on the idea that parties to a dispute should not fear that an attempt to settle outside of litigation may result in the disclosure of material and discussions against their interest in any future related proceedings [See Cutts v Head [1984] Ch 290, [1984] 1 All ER 597].  Instead, they should be encouraged to communicate openly and freely during negotiations in an attempt to compromise and resolve the dispute.

Although courts vary on their descriptions of without prejudice as being “a rule governing the admissibility of evidence” or a “privilege” [See Rush & Tompkins and PAG v RBS], it is clear that protected documents and discussions are immune from disclosure in proceedings between parties to the without prejudice communications and disclosure to other third parties in any related subsequent litigation.    

In many cases, parties will label a document with the terms “Without Prejudice”, however, the label is not sufficient to attract the privilege, rather it gives rise to a rebuttable presumption that an intent to negotiate exists [See Bradford & Bingley v Rashid [2006] 1 WLR 2066 (HL)].  Absence of the label will also not be fatal to a claim for privilege.  It is also important to remember that for both LAP and LP, simply marking a document “Privileged” will not render the document privileged.  The document must always meet the requirements set out above in order to attract the privilege.