Privilege entitles a party to withhold evidence (written or oral) from production to a third party or the court 


There are a number of types of privilege, including legal professional privilege, which comprises: 


  • ‘Legal advice privilege’ (confidential communications between lawyers and their clients made for the dominant purpose of seeking or giving legal advice)
  • ‘Litigation privilege’ (confidential communications between lawyers and their clients, or the lawyer and a third party, which come into existence for the dominant purpose of being used in connection with actual or pending litigation) 


‘Common interest privilege’ applies to both legal advice privilege and litigation privilege and preserves privilege in documents disclosed to third parties.  It arises where a person voluntarily discloses a privileged document to a third party who has a common interest in the subject matter of the privileged document or in litigation in connection with which the document was brought into existence 


The common interest must exist at the time of disclosure to the recipient 


The relationships where common interest privilege has been held to apply include: 


  • Co-defendants
  • Insured and insurer, reinsurer and reinsured
  • Companies in the same group, including parent companies and subsidiaries
  • Agent and principal
  • Any parties who do or might use the same solicitor 


Notwithstanding the case law it is still uncertain as to whether common interest privilege will apply in any given situation.  Consequently, it is best to be cautious when considering disclosing privileged documents to third parties, including third party litigation funders 


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