CH230210 - 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
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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 relevant paragraphs setting out the person’s rights. This can be automatically added in SEES by selecting the appropriate option.
The notice will include the concept of waiver in your letter so that the person has a fuller explanation of their rights, but 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.