Is Everything I tell my Solicitor Private and Confidential?
If you decide to instruct a solicitor in relation to a certain matter you will have to tell your solicitor all the facts about your case. According to Solicitors’ Code of Conduct your solicitor will be bound by a duty of confidentiality and he should therefore not make any unnecessary disclosures about your case. He on the other hand has a duty of disclosure which makes him disclose information if the court so orders. The court has the power to order which information or documents must be disclosed to the other party so that justice is done. Therefore your solicitor may be required to disclose and allow for inspection certain information contained in documents if the court so orders.
Disclosure of documents
In the proceedings the parties may be directed or ordered by the court to disclose certain information e.g. documents about their case to the other party. The fact that one party holds documents which may be important for the other party does not render them available to the other party. These documents are only available for inspection in certain circumstances. Disclosure and inspection of those will help the court clarify the issues, evaluate the case, encourage early settlement of the dispute between the parties and do justice in the end. General rule is that a party must disclose any document in his or her possession which falls within the definition of a standard disclosure ordered by court.
Standard disclosure as defined in Civil Procedure Rules requires a party to disclose certain information, namely the documents on which he relies and which adversely affect his case, another party’s case or support another party’s case. He may be required to disclose documents stated in relevant Practice Direction. The party is required to make a search for those documents and such a search must be reasonable. The reasonableness element requires a party to take into consideration the complexity and nature of the case, the amount of documents, importance of the documents, expense involved in searching for them. There is no need to disclose more than one copy of the document. A document is defined as anything which can contain some information. E.g. tape recordings, laptops, documents, discs, databases, deleted emails etc. A party is only required to disclose documents which are or have been in its control. If during the proceedings the party obtains control of a document which is required to be disclosed it must disclose it. Therefore it is essential that a party does not create any documents which would not be helpful to it in the proceedings.
Inspection of documents
If it is believed that inspection of certain documents would be disproportionate if allowed, such an inspection may not be permitted, it would however have to be explained giving reasons why such an inspection amounts to a disproportionate one. Some documents may not be allowed to be inspected on the basis of legal advice privilege, litigation privilege, and without prejudice communications, common interest privilege and privilege against self-incrimination.
Legal Advice Privilege
Legal advice privilege covers confidential communication or discussions between you and your lawyer for the purpose of giving you or receiving legal advice. Such information will not be allowed for inspection to the other party. As long as the communication is confidential it will not be allowed for inspection.
Litigation privilege covers any communication between a lawyer and a third party e.g. a witness or a client and a third party. Such communication is privileged and therefore not available for inspection as long as it is for the purpose of obtaining legal advice evidence or any information. Without the purpose of obtaining legal advice such communication will not be privileged.
Without Prejudice Communications
This type of communication helps the parties to settle the dispute. The document will normally state in its heading ‘without prejudice’. Such a document will therefore not be allowed to be inspected by the other party.
Common Interest Privilege
Common interest privilege covers any communication between the client and a third party relating to the common interest in a mater, this is therefore privileged.
Privilege against Self-incrimination
It is a type of a document which would incriminate the party if it was disclosed e.g. any criminal penalty. This document will also be privileged.
Each party will be required to make a list of documents which will be sent to the other party. Such a list must be contained in a specific form. The list must indicate which documents it is intending not to allow for inspection and on basis of which privilege and whether they are in his possession. Where the party has the right to inspect a particular document, that party should give a written notice of inspection to the other party. If one of the parties disclosed the document it must permit inspection not more than 7 days after the date of the written notice. Copies of the documents may be requested.
Information which you will say to you solicitor may or may not be disclosed to the other party depending on whether a particular document falls within one of the definitions of a privileged document. It is however essential to notify a client that he should not create any documents which would adversely affect his case and so that reduce his chances of success in the proceedings if these had to be disclosed and inspected as duty of disclosure continues throughout the proceedings too.