How to do a compliance check: information powers: rules that apply to all notices: resolving disputes about legal professional privilege: process when a notice is given in correspondence: sending the notice
Before you give an information notice you may find it useful to discuss with the person the potential for privileged material to be required and how this will be dealt with.
When a person receives your information notice they may consider that some or all of what you are asking for is privileged, see CH22240 about legal professional privilege. You can only see privileged material if the person chooses to waive their privilege and let you see it.
Where you are seeking documents or information that may include privileged items, the notice should contain paragraphs along the following lines.
“You do not have to produce documents or provide information for which you can successfully claim legal professional privilege but you can choose to waive privilege. It may assist progress of the compliance check if you do but you would be giving up your right to keep the information or documents private. It may help us to complete our check if you do.
Legal professional privilege is a complex area of the law which only properly applies in limited circumstances. I may wish to challenge any claim to legal professional privilege on the basis that I disagree that the documents or information being withheld properly fall within the scope of the privilege.
If you decide to withhold documents or information because legal professional privilege attaches to them, you must give me a list of each document or type of document withheld. Under the law you must send the list to reach me no later than user to insert actual date [20 working days after the date given for providing the information or document]. The list should say, for example, “I am not providing the following items because I think they fall within legal professional privilege: (1) letter dated xx/xx/xxxx from [name of client] to [name of lawyer] asking for advice on the law; (2) letter dated yy/yy/yyyy from [name of lawyer] to [name of client] giving advice on the law”. You do not have to describe a document if describing it would itself cause a dispute about privilege.
You should let me have all the items mentioned in the notice that are not on the list.”
You should include the concept of waiver in your letter so that the person has a fuller explanation of their rights. You should not treat a refusal to provide privileged information as a lack of co-operation. However, the voluntary provision of such information could earn credit to be set against poor co-operation in another aspect of your compliance check. Where penalties are likely, you could encourage waiver by telling the person that it could increase the quality of disclosure reduction and lead to a lower penalty.
If you intend to ask an unrepresented person for documents or information where you suspect legal professional privilege may be in point you should explain briefly the concept of legal professional privilege and allow the person an opportunity to obtain advice.
See CH230220 for guidance about what you must do if the person claims documents you have asked for are privileged.