- Legal professional privilege protects confidential communications between you and your lawyers.
- It includes confidential communications enabling you to obtain, or your lawyer to give, legal advice.
- It also includes legal services for use in litigation where litigation is taking place or is likely to take place.
- This guideline explains how we approach claims of legal professional privilege.
We have a range of information gathering powers we use to collect information. The compulsory information gathering powers include:
- notices issued under s.155 of the Competition and Consumer Act 2010, requiring someone to provide information or documents about a possible breach of the Competition and Consumer Act 2010
- disclosure notices issued under s.133D of the Competition and Consumer Act 2010, requiring someone to provide information or documents about goods or services that may cause injury
- notices issued under s.95ZK of the Competition and Consumer Act 2010, requiring someone to provide information or documents about price notification, inquiry or monitoring under the Competition and Consumer Act 2010.
This guide sets out our approach to seeking information about any claims for legal professional privilege you wish to make, when you respond to a compulsory notice. It is not a substitute for legal advice.
Legal professional privilege is a privilege which applies to confidential communications made in connection with:
- the giving or obtaining of legal advice
- the provision of legal services for use in, or in relation to, litigation.
When responding to an ACCC compulsory notice, you are not required to produce material that attracts a valid claim of legal professional privilege.
When maintaining a claim of legal professional privilege over the whole or part of a document:
- confidentiality must have been maintained in the communication
- the communication must have been made for the dominant purpose of giving or obtaining legal advice or use in litigation. This litigation must be either taking place or be reasonably anticipated at the time the communication is made.
Before responding to the compulsory notice, it is your responsibility to assess whether legal professional privilege applies and whether a document, or part of a document, should be withheld or redacted.
Section 155 and section 133D notices
If you are claiming legal professional privilege over documents or parts of documents when responding to a s.155 or s. 133D notice, you will generally be asked in the cover letter to voluntarily provide the following particulars to your legal professional privilege claim for each document:
- document identifiers, such as a unique document number or Doc ID in an electronic document management system
- host reference for documents which are attachments
- document type, such as email or letter
- document title
- document date and time
- names of all authors, and from, to, cc and bcc information
- category of legal professional privilege claimed (advice privilege or litigation privilege)
- grounds of claim (brief description of the basis for the privilege claim, such as legal advice provided by inhouse lawyer, prepared for litigation, after [date] when litigation was reasonably anticipated)
- whether the document is in electronic or hard copy form
- whether legal professional privilege is claimed for all or part of the document and, if part of the document, whether a redacted version of the document has been produced
- in the case of third-party privilege claims, the name of the privilege holder.
The details requested are not intended to interfere with privilege. If providing the requested details would disclose privileged information, you can elect to withhold that portion.
When you provide the requested information about a legal professional privilege claim, we will not argue this amounts to an implied waiver.
The information you provide will enable us to consider whether to accept or challenge any legal professional privilege claim, and ultimately assess your compliance with the compulsory notice.
Section 95ZK notices
If you are claiming legal professional privilege over documents or parts of documents to a notice issued under s. 95ZK of the Competition and Consumer Act 2010, you will generally be asked in the cover letter to voluntarily specify whether you have withheld or made any redactions of any documents.
We may contact you in some cases to seek further detail of your legal professional privilege claim.
We recognise there are some circumstances where alternative approaches to a document-by-document itemisation of legal professional privilege claims are more appropriate.
An alternative approach may include legal professional privilege claims being particularised by reference to categories of documents, rather than by individual documents.
In exceptional circumstances, we may seek a more limited range of information in the notice cover letter, or may agree to an alternative approach with you after you receive the notice.
Examples of exceptional circumstances are urgent mergers and notices issued to third parties. There may be other circumstances where we consider a less detailed approach is appropriate depending on your circumstances, or the nature or context of the notice.
We will usually ask you to provide the requested information stating your legal professional privilege claims at the same time as you respond to the compulsory notice.
If you think you may need longer to provide the legal professional privilege information, you should contact the case team. The case team’s details are provided in the notice cover letter. The case team may agree to another date for you to provide the information.
You should not delay responding to the compulsory notice to finalise legal professional privilege information.
We will contact you if you do not provide the requested legal professional privilege information or provide insufficient information.
Failure to voluntarily provide the legal professional privilege information may:
- lead to further inquiries
- result in us issuing a further notice
- lead to action being taken against you for failure to comply with a notice if material has been withheld without a valid legal professional privilege claim.