As a party in court proceedings in New Zealand, you may need to disclose confidential information during the process. However, there are rules in place to ensure that you do not need to disclose certain ‘privileged’ communications. The primary types of legal privilege that you can rely on in the context of commercial litigation are: 

  • client-lawyer privilege; 
  • litigation privilege; and 
  • settlement privilege. 

This article will discuss each of these concepts as well as the concept of privilege in general.

Disclosing Information During Court Proceedings

If you are involved in a court case, you must submit factual evidence to the court to support your arguments. This can be in the form of documents or witness testimony. Both parties will be able to access and consider each others’ evidence. In addition, you can actively seek more information about your opponent’s evidence. 

For example, you can:

  • seek orders for discovery, which requires each party to catalogue and make available the documents they intend to rely on; and
  • compel witnesses to testify, which requires the witnesses relied upon by your opponent to attend court and answer questions under oath.

These procedures are in place to ensure that the court will consider as much relevant information as possible before it makes a decision about the case. In effect, however, it means that you may have to disclose commercially sensitive or confidential information during the course of the litigation. That is, unless the information is privileged.

Legal Privilege

The law protects certain categories of information under the doctrine of legal privilege. This means that you do not need to disclose it to the court or the other party (unless you waive the privilege). In the context of commercial litigation, there are three main types of privilege to be aware of: 

  • client-lawyer privilege; 
  • litigation privilege; and 
  • settlement privilege.

Client-Lawyer Privilege

Client-lawyer privilege, or legal professional privilege, protects communications between a client and their legal adviser if the communication were:

  1. intended to be confidential; and 
  2. made for the purposes of requesting or obtaining legal advice. 

This rule exists to enable individuals and businesses to obtain confidential advice about their legal position, options and strategy, without risk of that advice:

  • being disclosed to another party; and
  • causing a strategic disadvantage.

Litigation Privilege

Litigation privilege is broader than client-lawyer privilege. It protects all information and communications made or received in the context of preparing for litigation. This includes any communications prior to the litigation actually commencing, provided that you made them in anticipation of litigation. It extends to communications with third parties, such as expert witnesses.

Settlement Privilege

Settlement privilege extends to communications made in an attempt to resolve a litigated (or soon-to-be litigated) dispute by way of:

  • commercial negotiation; and
  • compromise.

Such discussions are typically managed on a ‘without prejudice’ basis, which means that your statements and proposals do not ‘prejudice’ your legal positions if a settlement is not reached. In other words, the law extends privilege to these materials, and parties will not be able to use them as evidence in subsequent court proceedings.

Exceptions to Privilege

Privilege does not extend to communications made or received: 

  • for a dishonest purpose; or 
  • to assist a person to commit an offence. 

Challenging Privilege

If you have identified communications which you consider privileged, you have the right to refuse to disclose this information in court proceedings. However, if the other party disagrees with the basis upon which you have claimed privilege, they may apply to the court for an order to set aside or modify that claim.

Waiving Privilege

In respect of both legal advice privilege and litigation privilege, the privilege ‘belongs’ to the client or the person involved in the dispute. Therefore, only that person is able to waive the privilege.

It is relatively easy to lose privilege by express or implied waiver. Disclosure of:

  • part of a legal opinion may waive privilege over the entirety of that opinion; or
  • a final legal opinion may lead to waiver of privilege over previous advice upon which the final opinion is based.

Privilege can be waived by producing or disclosing any significant part of the privileged material in circumstances that are inconsistent with a claim of confidentiality. You can therefore waive privilege in respect of material which you disclose without an express requirement that it remain confidential. 

Key Takeaways

Where court proceedings may eventuate, it is important to be aware of the fact that you may need to provide documents relevant to your dispute to the opposing party unless you can establish that privilege exists. Most communications between you and your lawyer are likely to be privileged. However, if you are not sure, you should seek further legal advice. Any admissions or damaging statements that are made during this period may well end up being relied upon by the opposing party to prove their case. It is essential to be conscious of this and prudent about what is communicated (both externally and internally) in the early stages of a dispute prior to obtaining legal advice. If you would like advice regarding what evidence is protected by legal privilege, contact LegalVision’s New Zealand disputes lawyers on 0800 005 570 or complete the form on this page.

FAQs

Can I waive legal privilege?

If you are the client, you may waive legal privilege. Privilege can be waived by producing or disclosing any significant part of the privileged material in circumstances that are inconsistent with a claim of confidentiality. 

Do I need to disclose documents during litigation?

During litigation in New Zealand, both parties will be able to access and consider each others’ evidence. In addition, you can actively seek more information about your opponent’s evidence. However, you will not need to disclose information if it is protected by legal privilege. 

What types of legal privilege exist?

The three main types of privilege to be aware of are client-lawyer privilege, litigation privilege and settlement privilege.

Can I challenge a claim of legal privilege? 

Yes. If you disagree with the basis upon which another party has claimed privilege, you may apply to the court for an order to set aside or modify that claim.

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