Privilege—the basic principles

This Practice Note outlines some of the issues that general privilege principles raise for IP practitioners, along with particular statutory IP privilege rules to be aware of. It is not designed to set out the general law of privilege but it is worth expanding on some basic principles.

Privilege arises from the need for a client and lawyer to have candid communications on how to protect the client’s interests, without those being discloseable to an opposing party or to the court. While the following are not the only types of privilege, the two main types to be concerned with in the IP sphere are ‘legal advice privilege’ and ‘litigation privilege’. The rules of each, as evolved through case law, can have very different practical effects. These two types of privilege are sometimes collectively called ‘legal professional privilege’ but this language is confusingly similar to ‘legal advice privilege’ and so will not be used again in this note.

Understanding the differences between legal advice privilege and litigation privilege is of huge practical significance and is not just of legal