Written by Litigants in person · privilege · confidential strategy
Privilege is powerful only if you treat it as a rule of evidence, not office folklore. Write less, separate purposes, keep the circle small, and route the right work through the right people at the right time.
Publication snapshot
- Privilege is a fundamental right, not a courtesy.
- Labels such as “privileged and confidential” do not create privilege by themselves.
- Legal advice privilege does not generally cover non-lawyer legal or tax advice.
- Litigation privilege may apply where litigation is realistically in prospect and the dominant purpose test is met.
- Careless forwarding, reply-all chains and mixed-purpose emails can hand the other side an easy win.
Who this is for
This guide is for anyone representing themselves in a dispute who needs to keep their legal strategy, communications and evidence-gathering confidential — and avoid handing the other side an easy win through careless emails or sharing.
What the law actually says
Privilege is a fundamental right, not a courtesy. Courts guard it jealously. Statutes only override it with clear words or necessary implication.
Dominant purpose governs
Dominant purpose governs both main pillars. Properly framed internal fact-finding, done when litigation is realistically in prospect, can be covered by litigation privilege. The Court of Appeal has corrected earlier, narrower approaches.
Non-lawyers and LAP
Legal advice privilege does not extend to non-lawyer advisers. The Supreme Court refused to extend LAP to accountants’ legal or tax advice. If you want LAP, route advice through a qualified lawyer.
Regulators and privilege
Even powerful regulators cannot override privilege without clear statutory words. FOIA section 42 and EIR regulation 12(5)(b) both recognise legal professional privilege, with a strong public interest in maintaining it.
Shareholder access
The Privy Council has abolished the shareholder rule. Expect tighter corporate resistance to disclosure requests dressed up as shareholder rights.
Systemic weaknesses and common traps for litigants in person
The practical risk often starts with ordinary email habits. “Reply all”, “cc the lawyer” and “send the whole chain” can create discoverable threads with one legal line tacked on. The law looks at purpose and audience, not the subject line.
Where the system fails you
- Email culture creates mixed-audience, mixed-purpose records.
- Attachment myths lead to blanket privilege claims that do not survive scrutiny.
- Regulatory pressure can make voluntary cooperation sound compulsory.
- Privilege can be lost by careless sharing.
Fix these today
- Separate operational chat from legal advice.
- Do not forward legal advice widely to friends, HR or advisers.
- Do not assume privilege labels create privilege.
- Do not start DIY investigations before litigation is reasonably in prospect without considering litigation privilege.
The LiP playbook: do this, not that
Define your “client” from day one
If you are a director or trustee, record who is authorised to seek and receive legal advice. Keep the circle tight.
Keep legal advice communications clean
Use one email and one purpose. Split legal advice requests from business updates, operational discussion and emotional commentary.
Split legal from business
If you must update non-lawyers, send a separate non-privileged note stripped of lawyer commentary. Do not forward your lawyer’s email.
Treat attachments as radioactive
Ask whether the attachment is privileged in its own right. If not, do not assume the wrapper saves it.
For investigations, frame the purpose early
As soon as litigation is realistically in view, get a lawyer to direct interviews, memos and expert instructions where possible. That routing helps litigation privilege.
Handle FOI, EIR and regulatory demands carefully
If a request or demand touches legal advice, record that the material is privileged and cite FOIA section 42 or EIR regulation 12(5)(b) where applicable.
Do not rely on non-lawyer advisers for LAP
Accountant or consultant input may be useful, but it does not attract legal advice privilege merely because it contains legal or tax analysis.
Guard against waiver
Quoting or summarising legal advice in open correspondence can waive privilege. If you need to rely on the effect of advice, discuss limited or collateral waiver strategy with a solicitor.
Remember the iniquity exception
Privilege will not protect communications furthering crime, fraud or iniquity. Do not dress wrongdoing in legal letterhead.
Keep a privilege log
For anything withheld, note the date, author, recipients, type of privilege and high-level purpose. Record enough to justify the claim, not enough to reveal the advice.
Worked examples
A. Privileged request for advice: good
Subject: Privileged – Request for legal advice: post-dismissal confidentiality
To: Solicitor
“I seek your legal advice on whether clause 7 of my compromise agreement prevents me from providing evidence to the ICO. Facts: [bullet points]. Questions: [numbered].”
This is single-purpose, lawyer-only and clearly framed for legal advice.
B. Multi-recipient spaghetti: bad
Subject: Project X – all views please
Recipients: mixed business recipients, copied to legal
“Thoughts on staff rota and, [Lawyer], any legal risks?”
Mixed audiences and mixed purposes create a weak privilege claim.
C. FOI/EIR response wording
“The requested material comprises confidential lawyer–client communications created for the dominant purpose of legal advice/litigation. We rely on FOIA section 42/EIR regulation 12(5)(b). We have considered the public interest and, given the strong public interest in preserving legal professional privilege, the balance favours maintaining the exemption.”
Fresh developments: late 2024 and 2025
Shareholder access
The Privy Council has abolished the shareholder rule in Jardine Strategic v Oasis [2025] UKPC 34. Expect tighter corporate resistance to shareholder requests for company legal advice.
Regulators and privilege
The Sports Direct v FRC [2020] EWCA Civ 177 line remains a reference point: privilege stands unless Parliament says otherwise, and attachments do not automatically get a free ride.
Dominant purpose
The Jet2.com Ltd v CAA [2020] EWCA Civ 35 guidance on multi-addressee emails still applies. In-house lawyers wearing business hats are not a magic shield.
Red flags: stop and rethink
Quick checklist before you hit send
Audience
- Is the communication limited to the lawyer and authorised client group?
- Are non-lawyers receiving only what they strictly need?
- Have you avoided forwarding legal advice widely?
Purpose
- Is the dominant aim legal advice or litigation?
- If the purpose is mixed, have you split the communication?
- Have you avoided operational commentary in the legal advice thread?
Attachments
- Does each attachment independently qualify for privilege?
- If not, should you describe it instead of attaching it?
- Have you avoided assuming the wrapper saves the attachment?
Record
- Have you labelled the document appropriately?
- Have you kept a short note of when litigation became a real prospect?
- Have you maintained a privilege log for withheld material?
Bottom line
Privilege is powerful only if you treat it as a rule of evidence, not office folklore. Write less, separate purposes, keep the circle small, and route the right work through the right people at the right time.
Legal disclaimer
This guide is for information only and does not constitute legal advice. If in doubt, consult a qualified solicitor before sharing sensitive material. All references to legal authorities are provided for context. Readers should verify all citations, check current law, and obtain advice on privilege, disclosure, waiver, regulatory requests and litigation strategy before acting.