Privilege
Also called: Legal professional privilege, LPP, without-prejudice privilege
The right to withhold certain documents or communications from disclosure in legal proceedings.
Definition
Privilege is the right to refuse to disclose specific categories of document or communication, even when a court would otherwise order disclosure. There are two main heads: (1) Legal professional privilege (LPP) — which has two limbs: (a) legal advice privilege protects confidential communications between a client and their lawyer made for the purpose of giving or receiving legal advice; and (b) litigation privilege protects documents created for the dominant purpose of conducting actual or anticipated litigation. (2) Without-prejudice privilege — genuine settlement offers and negotiations marked "without prejudice" cannot be put before the court as evidence of admissions. Privilege belongs to the client, not the lawyer; it can be waived only by the client. Privileged documents do not appear in a party's disclosure list and courts cannot compel their production. Common traps: privilege does not protect communications made to further a crime or fraud; litigation privilege requires litigation to be reasonably anticipated; and accidentally disclosing a privileged document to the other side may constitute a waiver depending on the circumstances.
In practice
When preparing your disclosure list, mark privileged documents as "withheld — legal advice privilege" or "withheld — without-prejudice privilege" rather than omitting them entirely. If the other side includes what looks like your privileged document in their disclosure, stop reading it and seek legal advice immediately — courts have granted injunctions preventing use of inadvertently disclosed privileged material. See also the <a href="/glossary/without-prejudice" class="body-link">without-prejudice glossary entry</a> and the <a href="/glossary/disclosure" class="body-link">disclosure entry</a>.