It has long been established, and was accepted in Three Rivers No 5, that legal advice privilege applies to evidence of privileged communications – i.e. documents or other communications (or parts of either) which reveal the content of lawyer / client communications, even if they are not themselves lawyer / client communications.
Similarly, a document or communication which evidences the content of another communication that is subject to litigation privilege (as opposed to legal advice privilege) will be privileged even if it does not itself meet the test for litigation privilege, i.e. it was not created for the dominant purpose of litigation in reasonable prospect.
Redaction
Where an entire document or communication evidences a privileged communication, the entirety can be withheld. Where only part of the document or communication evidences the privileged communication, that part should be redacted and the remainder disclosed (assuming the remainder meets the applicable test for disclosure in the particular context, eg. if the context is standard disclosure in litigation, whether it supports or adversely affects any party’s case).
Is inference enough?
It seems that to “evidence” a privileged communication, the later document or communication must do more than merely allow the substance of the privileged communication to be inferred. This issue was addressed in Financial Services Compensation Scheme Ltd v Abbey National Treasury Services plc [2007] EWHC 2868 (Ch), where the court said that unless the inference is “obvious and inevitable, in which case the document is in substance a statement of the advice or communication”, privilege does not attach to documents which merely allow the advice to be inferred. The court in that case said the question is whether the privileged communication is reproduced, summarised or paraphrased. Whether this is the case will obviously be a matter of fact and degree in each case.
Note: Content up to date as at 31 January 2013
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