Examination Timing: 00H00M34S
A company, the claimant, is pursuing a negligence claim against an accountancy practice. The claimant seeks damages for allegedly negligent professional advice provided by the defendant. Standard disclosure has been ordered. A two-page letter sent to the claimant’s managing director by an independent financial adviser is included in the claimant’s list of documents. The letter, intended solely to provide advice on drafting the letter before claim for the current litigation, was found in the managing director's office, and the only copy is with the claimant’s solicitor.
On what basis can the claimant claim a right to withhold inspection of the letter?
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The correct basis for withholding inspection of the letter is that it is subject to litigation privilege. Litigation privilege applies to documents created for the dominant purpose of obtaining legal advice or for use in litigation that is reasonably in contemplation. In this case, the letter from the independent financial adviser was written solely to provide advice about drafting a pre-litigation letter in the context of the current dispute. This places the document squarely within the bounds of litigation privilege. Legal advice privilege would not apply here because the financial adviser is not a legal professional. Litigation privilege, however, extends beyond communications with lawyers to include advice from third parties if it is prepared for the dominant purpose of litigation.
Key Point: Litigation privilege protects documents created primarily for obtaining advice or use in litigation. It covers communications with third parties if the dominant purpose is related to litigation. This ensures that parties can prepare their cases without the risk of compromising their position by disclosing strategic or preparatory advice.
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