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You may have heard lawyers talking about “privilege” or about “privileged documents”. We thought it would be helpful to have a brief look at the concept of privilege and what it means within the practice of family law.

Privilege is a long-standing principle of common law; in fact the earliest recorded examples date from the 16th century. It provides protection to clients from having to disclose certain documentary evidence to other parties and the court. Privileged documents include those which a party is entitled to keep confidential, such as documents referring to settlement negotiations, confidential communications with lawyers and documents prepared in contemplation of litigation.

In technical terms here are four main privileges: legal professional privilege; without prejudice privilege; common interest privilege; and privilege against self-incrimination. Only the first two are relevant to family law.

There are two forms of legal professional privilege. The first is called “legal advice privilege” and protects confidential communications between lawyers and their clients which were created in order to give or obtain legal advice. It is worth pointing out that privilege only applies between clients and their solicitor or barrister: it does not apply in the same way to relationships with other professionals. The second is called “litigation privilege” and protects confidential communications between lawyers, clients and third parties made for the purposes of litigation, whether that litigation is in process or is contemplated.

“Without prejudice privilege” arises from the public policy of encouraging people in dispute to settle their cases rather than pursue them all the way to trial. It enables people to discuss ways to resolve their dispute, without worrying that any admissions or offers to settle which they might make will be used against them at a later date. All discussions and correspondence that are aimed at settling the case will be excluded from evidence, and will be considered to be “without prejudice”. This means they cannot later be drawn to the attention of a court or tribunal, in contrast to “open” correspondence or negotiations, which can. We wrote about whether discussions over dinner could be said to be without prejudice here.

Another case recently looked at privilege attaching to documents in the context of troubled relationships.

In this case the parties (‘SC’ and ‘YD’) had been been together for 17 years and they never married. They have five children aged between six and sixteen. The family lived in a substantial home which was held in the sole name of the father, and was worth around £2¾ million. The father’s estimate of his personal wealth was around £14.5milion. The mother had been the homemaker and had no independent means of support.

When the relationship deteriorated the father drew up a document entitled “Agreement between SC and YD” and presented it to the mother at the family home in February 2013. The agreement set out that the parties would share the use of the family home for the next seven years (until their youngest reached 13), and if they had to sell it, the proceeds would be split equally.

At that date neither the father nor the mother had sought legal advice as to their respective positions. Neither party signed the document.

When they finally separated two months later, the mother made a claim for a beneficial interest in the family home and for financial provision for the five children of the family.

There was then a dispute about whether the 2013 document could be admitted as part of the evidence for the forthcoming 5 day trial of the case which will be heard later in the year. The mother wanted to use it to support her claim to half of the equity in the house; the father wanted it excluded and claimed it was privileged and so could not be seen by the court. The deputy district judge had said that the document was not privileged because at the time there was no dispute between the parties, i.e. litigation was not in contemplation, and therefore it could be used in evidence. The father appealed, but the appeal court agreed with the deputy district judge.

The appeal judge looked at what was contemplated by both parties at the time the document was produced. It referred to them living under the same roof for several more years, with no imminent separation, but with a reassurance to the mother that should that arrangement fail, she would receive half the value of the house. So the appeal judge decided that back in February 2013 neither party was seeking to compromise actual or pending litigation. No existing or contemplated litigation meant that no privilege attached to the document, so it will go into evidence and be seen by the court at the trial.

The outcome is a similar result to the dinner date case, and a reminder that there needs to be at least contemplated litigation and a genuine attempt to settle it to get the protection of the without prejudice umbrella. Otherwise, any document can be produced as evidence at trial.

As always, if you would like to discuss this or any other aspect of family law with Gail, Sue, Adam, Simon or Tricia, please arrange an appointment on 01223 443333.

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