Litigation privilege

Documents and conversations prepared because you are fighting a case can stay out of the other side's hands — but only some of them, and only if you understand how this differs from legal advice privilege and from without prejudice privilege.

Are my own notes about my case protected from disclosure?

Generally yes, once litigation is in progress or reasonably contemplated, and if the dominant purpose of making the notes was preparing for that litigation. Notes you made purely to organise your own thinking about strategy, evidence or likely arguments, made after you had decided to pursue or defend a claim, are typically covered by litigation privilege and do not have to be shown to the other side.

Is litigation privilege the same as without prejudice privilege?

No, and the two protect different things. Litigation privilege protects documents and communications created for the dominant purpose of preparing for litigation — drafts, strategy notes, evidence-gathering. Without prejudice privilege protects genuine attempts to settle a dispute, such as settlement offers and negotiation correspondence, so that trying to compromise a case cannot later be used against you. A draft witness statement is not a settlement offer, and a settlement offer is not a piece of litigation preparation — each privilege has its own test and its own purpose.

Does litigation privilege cover the underlying facts of my dispute?

No. Privilege only protects the communication or document itself — the fact that you discussed something with a friend, or wrote a note recording your recollection — not the underlying facts that exist independently of it. If you have an invoice, a contract, or a photograph that exists regardless of the litigation, that document is not privileged just because you later gathered it together with your case papers. You cannot use litigation privilege to withhold facts or documents that would exist whether or not there was ever a dispute.

Do I need a solicitor for litigation privilege to apply?

No. Litigation privilege does not depend on legal advice privilege, which specifically covers communications with a lawyer for giving or receiving legal advice. Litigation privilege can cover documents created by a self-represented litigant, or communications between a litigant and a non-lawyer such as a friend or a potential witness, provided they were made for the dominant purpose of litigation that was in progress or reasonably in contemplation.

What is the leading case on litigation privilege?

Three Rivers District Council v Bank of England (No 6) [2004] UKHL 48 is the leading modern authority, confirming that litigation privilege requires litigation to be in progress or reasonably in contemplation, the document to have been created for the sole or dominant purpose of that litigation, and the litigation to be adversarial rather than purely investigative. It builds on the earlier dominant purpose test set out by the House of Lords in Waugh v British Railways Board [1980] AC 521.

Can the other side find out that a document exists even if it is privileged?

Generally no detail is required beyond what is needed to assert the privilege, but a party is usually expected to list privileged documents by general category on a disclosure list, describing them generically (for example, correspondence with the claimant's witness about the claim) without revealing their content. The existence of privileged material is not normally hidden altogether, even though its contents remain protected.

The test, and where it comes from

Litigation privilege is one of two main forms of legal professional privilege, and it exists so that a person involved in a dispute can prepare their case candidly — gathering evidence, forming a view on strategy, discussing the strengths and weaknesses of their position — without handing all of that preparatory thinking to the other side. The modern test comes from the House of Lords' decision in Waugh v British Railways Board, which established that a document must have been created for the dominant purpose of litigation, not merely as one purpose among several of equal weight.

Three Rivers District Council v Bank of England (No 6) confirmed and refined that approach for the modern law, setting out that litigation privilege requires: first, that litigation is in progress or reasonably in contemplation — a real likelihood, not a mere possibility that a dispute might one day arise; second, that the communication or document was made for the sole or dominant purpose of conducting that litigation; and third, that the litigation is adversarial in nature, rather than a purely investigative or inquisitorial process. The person claiming the privilege carries the burden of showing all three elements are met.

Because the test looks at purpose, timing matters. A note made before any dispute was on the horizon, in the ordinary course of a relationship or transaction, is not converted into a privileged document just because litigation later follows — the dominant purpose has to exist at the point the document was created, not applied retrospectively once a claim has been issued.

How litigation privilege differs from legal advice privilege

Litigation privilege is often confused with its sibling, legal advice privilege, but they protect different things and arise under different conditions. Legal advice privilege covers confidential communications between a lawyer and their client made for the purpose of giving or receiving legal advice — and crucially, it applies whether or not any litigation is in progress or contemplated at all. Asking a solicitor for advice about a contract you are entering into, with no dispute in sight, is covered by legal advice privilege if it ever matters, but not by litigation privilege, because there is no litigation for it to attach to.

Litigation privilege, by contrast, does not require a lawyer at all. It can cover documents created by a self-represented litigant, or communications between that litigant and a non-lawyer — a friend asked to comment on a draft witness statement, or a potential witness approached to discuss what they recall — provided litigation is in progress or reasonably in contemplation and the dominant purpose test is met. This matters directly for someone running their own small claim: you do not need to have instructed a solicitor for your own case preparation to be protected.

How both differ from without prejudice privilege

A third, separate protection — without prejudice privilege — is where confusion causes the most practical harm, because it is easy to assume anything written "in confidence" about a dispute is covered by the same umbrella. Without prejudice privilege protects genuine attempts to settle a dispute: an offer to pay a reduced sum to avoid court, or correspondence genuinely aimed at reaching a compromise. Its purpose is to let parties negotiate freely, without fear that an offer to settle will be used against them later as an admission of weakness.

Litigation privilege and without prejudice privilege protect entirely different categories of material, and one is not a substitute for the other. A strategy note you wrote to yourself about how strong your case is has nothing to do with settlement and is not protected as without prejudice material — it may be protected as litigation privilege instead. Conversely, a letter offering to settle for a lower sum is not litigation preparation in the Three Rivers sense; it is protected, if at all, because it is a genuine settlement communication. Mislabelling a document as "without prejudice" does not make it privileged if it is not genuinely part of settlement negotiations, and claiming litigation privilege over a settlement offer is the wrong basis even where the offer is, separately, protected.

What a self-representing claimant should treat as privileged, and what is not

For someone preparing their own small claim, the practical dividing line is purpose and independence. Notes written to yourself about case strategy, a draft witness statement sent to a friend for comment once you have decided to bring or defend a claim, and correspondence with a potential witness about what they recall of the events in dispute, are all likely to be covered by litigation privilege, provided a dispute is genuinely in progress or reasonably in contemplation by that point.

What is not privileged is the underlying material that exists independently of the dispute — an invoice, a contract, a text message exchange with the other party, a photograph of damage, or an email sent before any dispute arose. These documents do not become privileged simply because you later gather them together with your case papers; privilege attaches to communications and documents created because of the litigation, not to facts or records that would exist regardless of it. A litigant who assumes that putting something in a folder marked "case preparation" shields it from disclosure is likely to be disappointed — the test looks at why and when the document was actually created, not where it ends up being kept.

A tenant decides to bring a small claim against their landlord for the return of a deposit. After deciding to sue, she writes a private note to herself setting out the arguments she thinks are strongest and the weaknesses in the landlord's position, and emails a draft of her witness statement to a friend asking for comments before she files it. Separately, she still has the original tenancy agreement and a string of text messages with the landlord from months before any dispute arose.

Private strategy note, written after deciding to sue

Litigation privilege — protected

Draft witness statement sent to a friend for comment

Not privileged — pre-existing document

Text messages predating the dispute

Not privileged — pre-existing record

The strategy note and the draft statement were created for the dominant purpose of the litigation she had already decided to bring, so she does not have to disclose them. The tenancy agreement and the earlier text messages exist independently of the dispute — they do not become privileged just because she now relies on them, and she will have to disclose them in the ordinary way if they are relevant.

Three Rivers District Council v Bank of England (No 6) [2004] UKHL 48

Waugh v British Railways Board [1980] AC 521

Civil Procedure Rules, Part 31

Litigation Privilege — Small Claims Glossary

What litigation privilege protects, the Three Rivers (No 6) dominant purpose test, and how it differs from legal advice privilege and without prejudice privilege.