I'm in dispute with my partners: can I assert privilege over partnership documentation and/or information?

Legal Advice Privilege

Litigation Advice Privilege

Protects communications between a lawyer and their client.

Protects communications between a lawyer, their client, and third parties.

Purpose: The purpose must have been to seek or provide legal advice. This encompasses advice on legal rights, obligations, or potential courses of action.

Purpose: The communication has to have been for the purpose of conducting, or defending legal proceedings i.e. to obtain legal advice or evidence for use in the litigation.

It applies regardless of whether litigation was contemplated or ongoing at the time it occurred.

You have to be able to tie the communication to a specific legal claim. i.e. was the communication had in the context of actual or anticipated litigation.

There must be a real likelihood of litigation at the time the communication occurred. Speculative or hypothetical disputes will not suffice.

Unfortunately, the courts have not been that helpful in defining what contemplated litigation is, only but to refer to "Litigation must be a real likelihood rather than a mere possibility" (USA v Philip Morris Inc [2003] EWHC 3028 (Comm).

Confidentiality: The communication must remain private between the client and their lawyer.

The communication must occur within the context of a professional relationship between a qualified lawyer and their client.

If the content of the correspondence is shared with a third party at any point, privilege may be lost.

Confidentiality: The communication must remain confidential for privilege to apply.

It should be noted that the protection of legal advice privilege applies to exactly that, instructions and advice. Partners have a proprietary interest in each and every asset which is partnership property.

For example, if a partner consults their solicitor for advice on the terms of the partnership agreement, those communications would likely be protected by legal advice privilege.

This privilege will apply to a partner's communications with a lawyer or an even a third party such as an expert if a partnership dispute escalates to the point where they believe legal proceedings are likely or inevitable.

It has recently been found, in the case of White & Ors v Uber London Ltd & Ors [2026] EWHC 1610 (Comm) that the communication between the potential claimant and a third party (in this case a litigation funder) when in contemplation of the claim, was not protected by litigation advice privilege as it was not communication for the dominant purpose of conducting the litigation. This demonstrates the importance of what the intention of the communication is so that it may qualify as privilege.