Duhaime's Law Dictionary


Litigation Privilege Definition:

Non-disclosure protection imposed on documents which come into existence after litigation commenced or in contemplation, and where they have been made with a view to such litigation, either for the purpose of obtaining advice as to such litigation, or of obtaining evidence to be used in such litigation, or of obtaining information which might lead to the obtaining of such evidence.

Related Terms: Client-Solicitor Privilege, Legal Professional Privilege, Privilege, Implied Undertaking Rule, Litigation

In Wheeler, Justice Jessel of the English House of Lords wrote:

"The cases, no doubt, establish that such documents are protected where they have come into existence after litigation commenced or in contemplation, and where they have been made with a view to such litigation, either for the purpose of obtaining advice as to such litigation, or of obtaining evidence to be used in such litigation, or of obtaining information which might lead to the obtaining of such evidence."

In Blank v Canada, Justice Fish of Canada's Supreme Court wrote a confusing judgment which goes to great length to distinguish the litigation privilege from the client-solicitor privilege.1 Consider, for example, his words: "litigation privilege is not directed at, still less, restricted to, communications between solicitor and client". In the result, it is with some trepidation that we suggest that client-solicitor privilege is a species of litigation privilege.

Here are the salient paragraphs of Justice Fish's opinion in Blank v Canada:

"Litigation privilege ... is not directed at, still less, restricted to, communications between solicitor and client. It contemplates, as well, communications between a solicitor and third parties or, in the case of an unrepresented litigant, between the litigant and third parties. Its object is to ensure the efficacy of the adversarial process and not to promote the solicitor-client relationship. And to achieve this purpose, parties to litigation, represented or not, must be left to prepare their contending positions in private, without adversarial interference and without fear of premature disclosure.

"It is crucially important to distinguish litigation privilege from solicitor-client privilege. There are, I suggest, at least three important differences between the two. First, solicitor-client privilege applies only to confidential communications between the client and his solicitor. Litigation privilege, on the other hand, applies to communications of a non-confidential nature between the solicitor and third parties and even includes material of a non-communicative nature. Secondly, solicitor-client privilege exists any time a client seeks legal advice from his solicitor whether or not litigation is involved. Litigation privilege, on the other hand, applies only in the context of litigation itself. Thirdly, and most important, the rationale for solicitor-client privilege is very different from that which underlies litigation privilege. This difference merits close attention. The interest which underlies the protection accorded communications between a client and a solicitor from disclosure is the interest of all citizens to have full and ready access to legal advice. If an individual cannot confide in a solicitor knowing that what is said will not be revealed, it will be difficult, if not impossible, for that individual to obtain proper candid legal advice.

"Litigation privilege, on the other hand, is geared directly to the process of litigation. Its purpose is not explained adequately by the protection afforded lawyer-client communications deemed necessary to allow clients to obtain legal advice, the interest protected by solicitor-client privilege. Its purpose is more particularly related to the needs of the adversarial trial process. Litigation privilege is based upon the need for a protected area to facilitate investigation and preparation of a case for trial by the adversarial advocate. In other words, litigation privilege aims to facilitate a process (namely, the adversary process), while solicitor-client privilege aims to protect a relationship (namely, the confidential relationship between a lawyer and a client)....

"The purpose of the litigation privilege ... is to create a zone of privacy in relation to pending or apprehended litigation. Once the litigation has ended, the privilege to which it gave rise has lost its specific and concrete purpose — and therefore its justification. But to borrow a phrase, the litigation is not over until it is over: It cannot be said to have terminated, in any meaningful sense of that term, where litigants or related parties remain locked in what is essentially the same legal combat....

"[T]he common law litigation privilege comes to an end, absent closely related proceedings, upon the termination of the litigation that gave rise to the privilege. Thus, the principle once privileged, always privileged, so vital to the solicitor-client privilege, is foreign to the litigation privilege. The litigation privilege, unlike the solicitor-client privilege, is neither absolute in scope nor permanent in duration."

REFERENCES:

  • Blank v Canada, 2006 SCC 39
  • Note 1: see, also, the opinion of Justice Bastarache in Blank v Canada, especially when he adopted these words: "At an overarching level, litigation privilege and legal advice privilege share a common purpose: they both serve the goal of the effective administration of justice.  Litigation privilege does so by ensuring privacy to litigants against their opponents in preparing their cases for trial, while legal advice privilege does so by ensuring that individuals have the professional assistance required to interact effectively with the legal system."
  • Wheeler v. Le Marchant, 17 Ch. D. 675 (1881)

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