The Role of Privilege in Adjudication

Adrian Bell

April 2013

A paper based on the second prize entry in the Hudson Prize essay competition 2012 presented to a meeting of the Society of Construction Law in London on 9th April 2013

In the cut and thrust world of adjudications - where parties try hard to seek any kind of tactical advantage in the limited timeframe available - gaining access to confidential communications (which can include details about perceived weaknesses in a party's case or its strategy) could be the difference between winning and losing. Requests for disclosure during adjudications are on the rise. These can be refused if the communication is protected by privilege. Adrian Bell's paper considers the applicability in the context of adjudications of the three most common forms of privilege (legal advice privilege, litigation privilege and without prejudice privilege).

Introduction -Legal professional privilege - Legal advice privilege - Litigation privilege - The position in Australia - Are the English courts likely to follow the same principles? - Are adjudications adversarial or non-adversarial proceedings? - Without prejudice privilege - Conclusion.

The author: Adrian Bell BA (Hons) is a senior associate and solicitor advocate at CMS Cameron McKenna LLP in London.

Text 14 pages.