Corporate & Commercial

Ferbrache & Farrell LLP’s corporate department offers full service corporate, banking and commercial cover and is able to advise on all aspects of Guernsey corporate and commercial law, including banking and finance, regulatory, investment funds, asset management and listings on The International Stock Exchange (TISE).

Latest Insight
11 April 2025
Insight
At F&F LLP Property Teams (Guernsey Property Team & UKRE Team), we understand that purchasing a property is one of the most significant investments you’ll…
Dispute Resolution

The Dispute Resolution department at Ferbrache & Farrell LLP has vast experience of local and international litigation and dispute resolution generally, gained from acting in complex local and international high-value disputes, both in Guernsey and throughout the world.

Latest Insight
16 April 2025
Insight
When is a debt not a debt?  When does a claim of prescription fail?  Lawyers frequently throw the concepts of prescription and limitation around (and…
Property

The Guernsey property department is dedicated to providing tailored solutions that meet and exceed clients’ expectations. In addition, the property department provides support to colleagues in the corporate and dispute resolution departments on real estate-related technical points of law.

Latest Insight
13 May 2025
News
We are thrilled to welcome Sarah Gaudion and Knatachaa Cardwell to the growing property team at Ferbrache & Farrell LLP. Their expertise, dedication, and passion…
UK Real Estate

We are delighted to help in relation to providing legal advice for real estate in England and Wales. We listen. We learn what your needs are. We proactively respond. Whether it’s personal or commercial property, we always provide sound and pragmatic advice, adding value to the transaction.

Latest Insight
21 May 2025
News
The UK House Price Index for March 2025 has been published today. The annual price rise of 6.7% has taken the average property value to…
Private Client

Our services for private client matters include the drafting of realty and personalty wills, acting as professional executors, and assisting foreign lawyers who have requirements in this jurisdiction.

Latest Insight
11 April 2025
Insight
At F&F LLP Property Teams (Guernsey Property Team & UKRE Team), we understand that purchasing a property is one of the most significant investments you’ll…

Introduction

“Privilege” over documents or communications is a powerful right and ensures the confidentiality of information in specific circumstances.  The principle of privilege is well established in Guernsey. 

Legal professional privilege entitles parties to withhold evidence which they would normally be obliged to disclose during the course of litigation.  There are two main types of legal professional privilege:

  1. Legal advice privilege – this covers confidential information exchanged between lawyers and their clients for the purpose of legal advice; and
  2. Litigation privilege – this covers any communications between lawyers, their clients and third parties where the dominant purpose of that communication is anticipated or current litigation.

One or both types of legal professional privilege may apply at any time.

Documents can also be protected by without prejudice privilege if they are prepared with the intention of trying to reach a settlement in a matter.  Whilst still a developing area of law, in certain circumstances common interest privilege may also be available where privileged materials are shared between those with the same interests in a particular matter.

Legal advice privilege

The purpose of legal advice privilege is to enable parties to freely discuss matters openly with their lawyers when seeking legal advice.  This also ensures that advice provided by lawyers remains confidential to those parties.  Legal advice privilege applies both to the advice provided and to the instructions provided by the client for the purpose of obtaining that advice. It does not apply to communications with third parties.

Legal advice privilege should automatically apply in the correct circumstances.  Key factors include:

  • The communication or information must be transmitted between the lawyers and their clients;
  • The communication or information must be for the purpose of obtaining or receiving legal advice. It will not cover more general business advice; and
  • The information should be confidential.

Litigation privilege

Litigation privilege is similar to legal advice privilege but it applies specifically in the context of litigation.  It covers communications between lawyers and their clients, or the lawyer or client and a third party where the client is preparing for potential litigation.

In order for litigation privilege to apply, the following factors are influential:

  • The communication or information should be confidential;
  • The sole or dominant purpose of the communication or information is actual or prospective litigation; and
  • The litigation needs to either be ongoing or there is a real prospect of it happening, rather than speculative discussion.

Legal advice privilege and litigation privilege apply automatically in the correct circumstances. However, in order to avoid any debate over the applicability of privilege it is helpful to mark relevant documents or communications as “confidential and subject to legal professional privilege”.

Regulatory Considerations

The law on legal advice privilege has been subject to some recent developments in the English courts in the context of regulatory investigations, and the Guernsey Courts are likely to take account of this guidance. This has cast some doubt over whether communications between parties and their legal advisors in the context of internal investigations are protected by privilege.  Whether privilege will apply will turn on the facts and circumstances, but we would strongly recommend that this concern is addressed at the start of preparation for any regulatory investigation.  That way it should be possible to ensure that the investigation is structured so that information can be protected by privilege from the outset, rather than seeking to apply privilege at a later stage.

Without prejudice privilege

Separately from legal professional privilege, without prejudice privilege applies to communications made in a genuine attempt to settle a dispute.  It operates to prevent those communications being put before the court, and can be used to put forward arguments or make concessions outside of the formal position in the context of negotiations.  There is no requirement for these communications to involve a lawyer and without prejudice privilege can apply to communications between the parties directly.

It is sensible to mark communications of this nature “without prejudice”.  Alternatively, communications can be expressed to be “without prejudice save as to costs” which means the communications cannot be disclosed until after the decision of the court.  Such communications can then be examined by the judge when deciding who should bear the costs of a particular matter.  This can be a powerful tool when properly utilised.