In for a Penny, in for a Pound? Legal Professional Privilege as a Shield Against Disclosure in Private Antitrust Litigation in Europe

Abstract

Trust me, I’m a lawyer. Though more often than not intended as a joke, the phrase does in fact have a serious legal application. Legal professional privilege, in its most basic form, protects the confidentiality of communications between the lawyer and the client by precluding their compelled disclosure in legal proceedings. Under what circumstances it does so in practice can vary dramatically between jurisdictions, and within jurisdictions between criminal, civil and administrative proceedings. It can be a formidable parry in the cut and thrust of evidentiary sparring, ultimately determining whether certain information will be admissible as evidence. When decisive items of evidence are at stake, the success of a claim can turn on a single question of privilege. This is particularly true of private competition litigation. Communications between an undertaking and its lawyers may contain a detailed compilation of facts pertaining to an anticompetitive behaviour and its consequences and...