On the face of it, the answer would probably be that such communications are not protected by privilege.
The starting point is to ascertain whether these communications satisfy the requirements for litigation privilege, namely that the communication must be:
- Bewteen a lawyer and a client, or between either of them and the third party witness of fact.
- For the dominant purpose of litigation.
The requirement for confidentiality complicates matters. As there is no property in a witness of fact, there is no reason, in principle, why the witness cannot discuss with others his or her potential evidence, or any correspondence relating to that evidence. For instance, if a potential witness sends a purportedly “confidential” email to a solicitor stating that they do not wish to give evidence because they are “of the view that the solicitor’s client’s claim is founded upon lies told by the client”, would this email be privileged? The answer is probably no, and thus it is likely that the email would be disclosable to the other side, even if the witness was never called as a witness.
What happens where the litigant or the litigant’s solicitor shares confidential information with a witness (or prospective witness)? In Istil Group Inc v Zahoor, the claimant and his solicitors communicated by email with an unidentified third party, sharing confidential information in the hope of obtaining relevant evidence. The witness subsequently shared the communications with the defendant, without the consent of the claimant or the claimant’s solicitors. Lawrence Collins J observed that the communications were undoubtedly covered by litigation privilege because of their confidential nature.
He went on to say, at paragraph 63 of his judgment, that:
“I do not consider for this purpose (whatever may be the position in relation to an application for an injunction to restrain the use of material disclosed by a witness…) it is not a condition of privilege that the witness or proposed witness expressly (or perhaps even impliedly) agrees to keep the communication in confidence. An unsolicited letter from a solicitor to a witness to a traffic accident asking him whether he saw the accident, and asking him to give evidence, would undoubtedly be privileged from production, but I doubt whether the witness would be under any obligation of confidentiality”.
Passmore, in Privilege (3rd edition, Sweet & Maxwell), explains, at paragraph 3-255, that Lawrence Collins J’s observations have been taken to mean that an obligation for confidence is necessary in order to underpin an application for injunctive relief against a witness who discloses materials to others without the consent of the litigant (or the litigant’s solicitors).
Passmore’s conclusion, at paragraph 3-269, is that:
“…it cannot, absent clear authority to the contrary, be taken for granted that communications between a litigant and a third party for the dominant purpose of litigation will result in documents that are privileged in the hands of both, unless that third party, the witness, is subjected to an on-going obligation of confidentiality and non-disclosure that the litigant can enforce by injunction”.
Unless a witness is asked to enter into a confidentiality agreement, it is arguable whether or not communications between a litigant (or their solicitor) and a witness will benefit from litigation privilege. Practically speaking, it would certainly be prudent to take care when communicating with a witness or prospective witness, bearing in mind that such communications could potentially be disclosable to the other side.
We would be interested to hear of your experiences.