David Burrows emphasises that legal professional privilege is a “substantive absolute right”
It may be helpful to elaborate on a couple of points which arise from Ed Heaton’s article, Tidal waive, which concerned circumstances in which a client may waive privilege unintentionally (NLJ, 2 September 2011, p 1169). Ed Heaton considers this subject in the light of Re D (A Child) [2011] EWCA Civ 684, [2011] All ER (D) 83 (Jun) where a mother in care proceedings had, by referring to part of the documents and notes which arose from an interview with her lawyers, impliedly waived privilege in respect of the rest.
Starting point
The starting point for any assessment of legal professional privilege (as Ward LJ makes clear at para [12] of Re D) is that it is a “substantive absolute right”: “There was no dispute that conferences between a client and counsel and meetings between a client and his solicitors are confidential and as such attract legal professional privilege. This confers on the client a substantive absolute right
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