This article continues the series on disclosure and privilege in family proceedings by looking at legal professional privilege (LPP), that is the right of a party to withhold otherwise relevant information from other parties and from the court. It looks at the distinction between legal advice privilege and litigation privilege and the different role of each in family proceedings. LPP is a right which cannot be overridden; though it may be waived or waived conditionally (mediators beware). Legal advice privilege applies in all family proceedings; but litigation privilege does not apply in care proceedings. Privilege may be overridden in only very narrow circumstances as defined in W v Egdell.
Mediators need to be wary of the extent to which LP applies and whether it has been permanently, or only conditionally, waived; and they need to be wary of the very limited circumstances in which they may pass on information to third parties (ie breach confidentiality) whether in respect of a party to proceedings or a child.
The full version of this article appears in the December 2013 issue of Family Law.