What is litigation privilege and what is the argument that litigation privilege means?

British Columbia, Canada


The following excerpt is from Liquor Barn Income Fund v. Mather, 2011 BCSC 618 (CanLII):

The oft-quoted explanation for litigation privilege is found in Hickman v. Taylor, (1947), 329 U.S. 495, 91 L.Ed. 451, page 511: In performing his various duties ... it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client’s case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference.

In Breau v. Naddy, 1995 CanLII 3040 (PE SCTD), 133 Nfld. & P.E.I.R. 196, the policy basis for litigation privilege was described in this way: Litigation privilege is grounded in the proposition that counsel must be free to make the fullest investigation and research without risking disclosure of counsel's opinions, strategies or conclusions.

Other Questions


Is there an implied waiver of privilege where a party waives privilege but takes a position in relation to privileged materials that is inconsistent with maintaining privilege? (British Columbia, Canada)
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Can litigation privilege be claimed over copies of litigation documents? (British Columbia, Canada)
Does solicitor-client privilege apply to litigation privilege? (British Columbia, Canada)
What is solicitor-client privilege and what is litigation privilege? (British Columbia, Canada)
In a personal injury case, is it possible for counsel to provide a more detailed description of privileged material without disclosing privileged material? (British Columbia, Canada)
Is there any case law in which privilege has been abused in the context of privilege at bar? (British Columbia, Canada)
What is the impact of Rule 7-5(2) of the Canadian Rules of Civil Procedure on a motion to dismiss an application for litigation privilege? (British Columbia, Canada)
Does solicitor-client privilege apply to the details and terms of litigation funding? (British Columbia, Canada)
Are the first five letters from the adjusters privileged within the meaning of the rule? (British Columbia, Canada)
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