One of the few ways you can prevent the disclosure of documents is if the document is "privileged".
What does this mean?
Any documents which:
- Have been drafted by a solicitor or barrister for their client, or show communication between them and their client, for the sole purpose of obtaining and providing legal advice, fall under legal advice privilege and do not have to be disclosed to any other party during a dispute; or
- Have been drafted by a solicitor, barrister or third party (expert) for their client, or show communication between them and their client, for the sole purpose of obtaining advice in relation to a present or near future litigation (e.g. Court proceedings), fall under litigation privilege and do not have to be disclosed to any other party during the proceedings; or
- Have been drafted by the client, a solicitor, barrister or third party as a genuine attempt to settle the dispute and headed "without prejudice", fall under without prejudice privilege.
The main exception to the application of privilege is the "inquity exception", where any documents have been created for the purpose of committing fraud or any crime, and therefore, no form of privilege can be relied upon.
What about adjudication?
Although litigation privilege covers documents produced where litigation is either in progress or there is a reasonable prospect of litigation (including draft submissions), there is no set authority under English law on whether adjudication is classed as litigation.
However, under Australian law, any documents created for adjudications are protected by litigation privilege, on the basis that preserving confidentiality between legal representatives and clients, promotes fairness and, adjudications are binding until a Court order alters the outcome (Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd  VSC H77).
Nevertheless, it does not cover preparing the claim prior to the commencement of the adjudication, where you involve an external third party, for example the architect if you are the contractor, or any correspondence exchanged with solicitors in preparing the adjudication.
What should be noted from the above is that these protections are available generally only where you have engaged/ instructed a solicitor and/or barrister.
If you instruct a non-solicitor to prepare your adjudication and/or seek advice from them prior to or during the adjudication, you will not have the protection of either legal or litigation privilege.
- Be very careful what you put in writing as it will be disclosable and could undermine your claim in Court later on.
- Instruct legal representatives early on.
- Where experts (quantum or structural engineers) are involved, ensure your legal representatives are copied in.
- Avoid letting your emotions take control and proofread a document prior to sending it.
Can you rely on Litigation Privilege to protect documents prepared for adjudication was discussed in our 20 Brilliant Construction and Engineering Questions – and answers! webinar on 20 August 2020. This question and answer was provided by Richard Bailey of Goodman Derrick LLP. To see other Brilliant Construction and Engineering Questions and answers from the webinar, please click here to see a PDF of the presentation.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.