20. Privilege Flashcards
What is the scope of legal professional privilege?
A client may, and his or her legal adviser must (subject to a waiver) refuse to give oral evidence or to produce documents relating to two types of confidential communication:
(a) Communications made for the dominant purpose of enabling the client to obtain or the adviser to give legal advice whether or not litigation was contemplated at the time (legal advice privilege); and
(b) Communications between client and legal adviser and third parties, the sole or dominant purpose of which was to enable the legal adviser to advise or act in relation to litigation that was pending or in contemplation of the client, that privilege being known as litigation privilege.
The privilege also covers items enclosed with or referred to in such communications and brought into existence (i) in connection with the giving of legal advice or (ii) in connection with or in contemplation of legal proceedings and for the purposes of such proceedings.
Litigation privilege can apply even if legal advice privilege also applies.
What is the burden for proving privilege?
The evidential burden is on the party claiming it.
How may a party prove a document or communication is privileged?
The question is for the court; a mere assertion is not determinative. The court must carefully consider the evidence supporting the claim, which should be specific enough to show something of the depondent’s analysis of the documents and the purposes for which they were created.
In most cases, the evidence should come from the person whose motivation and state of mind is in issue. If not satisfied on the basis of the evidence that a claim to privilege has been made out, as a last resort a court may inspect the documents, but should not do so unless there is credible evidence that those claiming privilege have misunderstood their duty or are not to be trusted with the decision making or there is no reasonably practical alternative
What does legal advice privilege cover?
Communications between clients and their legal advisers for the dominant purpose of obtaining or giving legal advice. Covers documents also evidencing such communications.
The communications must have been made either in the course of the relationship between client and legal adviser or with a view to its establishment. The privilege extends to counsel’s opinion taken by a solicitor. However, documents emanating from, or prepared by, independent third parties and passed to the lawyer for the purpose of advice are not privileged.
What does legal advice privilege cover in respect of corporate clients?
In the case of a corporate client, the privilege covers only (a) communications with those officers or employees expressly designated to act as ‘the client’ and not (b) documents prepared by other employees or ex-employees, even if they were prepared with the dominant purpose of obtaining legal advice, at the lawyers request, or sent to the lawyer.
The documents under (a) will remain privileged if sent or gien to the board of directors directly.
If a solicitor is retained by a company to carry out investigations to provide the company with legal advice and that requires the solicitor to speak to employees (or others) who are not ‘designated officers or employees’, the communications will not be covered by legal advice privilege, even if the employees have been authorised by the company to speak to the solicitor.
What is the scope of litigation privilege?
(a) The privilege is engaged when litigation is in reasonable contemplation
(b) Once engaged, it covers communications between parties or their solicitors and third parties for the purpose of obtaining information or advice in connection with the conduct of the litigation, provided it is for the sole or dominant purpose of the conduct of the litigation
(c) Conducting the litigation includes deciding whether to litigate and alsow ehther to settle the dispute
(d) Documents in which such information or advice cannot be disentangled or which would otherwise reveal such information or advice are covered by privilege
(e) There is no separate head of privilege covering internal communications falling outside the ambit of the privilege as described above.
(f) The privilege only applies in the case of litigation that is adversarial
Provided that litigation is in reasonable contemplation and the dominant purpose test is met, the party asserting the privilege does not have to be, or expect to be, a party to the litigation in question.
It was held that in both the civil and the criminal contexts, legal advice given to head off, avoid or settle reasonably contemplated proceedings is as much protected by litigation privilege as advice given for the purpose of resisting or defending such proceedings.
Litigation privilege extends to third parties, including employees of the client not authorised to seek or receive advice on behalf of the client.
It also extends to the identity and details of witnesses intended to be called in adversarial litigation, whether or not their identity is the fruit of legal advice.
Litigation privilege may extend to the identity of the person giving the instructions, provided that the communication itself is privileged and the privilege will be undermined by disclosure of the identity because such disclosure would give clues as to the content of the instruction.
May litigation or legal advice privilege be subject to secondary legislation?
Only if the statute providing for it makes it plain that such an authority was intended to be conveyed.
What types of document is covered by litigation privilege?
Documents created by a party for the purpose of instructing the lawyer and obtaining advice in the conduct of the litigation, but not documents obtained for the purpose of litigation that were not created for the purpose of litigation.
A copy or translation of an unprivileged document does not become privileged just because it was made for the purpose of litigation.
However, privilege will attach to a copy of an unprivileged document if the copy was made for the purpose of litigation and the original has never been in the control of the party claiming privilege.
Privilege will also attach where a solicitor has copied or assembled a selection of third-party documents for the purposes of litigation, if its production will betray the trend of the advice given to the client, but this does not extend to a selection of own client documents, or copies or translations representing the fruits of such a selection, made for the purposes of litigation.
In University of Dundee v Chakraborty [2022] EAT 150, an unprivileged document was revised, following legal advice, for the purposes of litigation. It was held that although privilege attached to both the terms of the advice given about the original document and the revised version, the original document could not acquire privileged status retrospectively, even if comparing it with the revised version allowed inferences to be drawn about the terms of the legal advice that had been given.
Can legal professional privilege be used in furtherance of fraud or crime?
Where there is a prima facie case of fraud, crime, or other iniquity, there is no privilege in communications brought into existence as part of or in furtherance of the iniquity. The exception covers both communications which reveal or report the iniquity and those brought into existence in preparation for the iniquity.
The exception applies where a client seeks advice intended to facilitate or guide the client in the commission of a crime or fraud, the legal adviser being ignorant of that purpose.
It also applies if the lawyer is a party to the iniquity, but not if he or she merely warns the client that the conduct, if persisted in, may result in a prosecution.
What is the burden for establishing legal professional privilege is being used in furtherance of fraud?
Balance of probabilities. However, the evidence in support of the iniquity must be cogent if it is to be taken into account.
Exceptionally, where a court is deciding the matter, the particular facts may lead it to take into account the balance of harm.
When may a client waive his privilege?
Not via merely stating he is relying on his solicitors advice when not answering questions. However, if the accused wishes to go further and stop the adverse inference under s34 of the Criminal Justice and Public Order Act, it is necessary to go further and state the basis and reasons for the advice. This may well amount to a waiver of privilege so the accused opens himself up to having his solicitor called and cross-examined upon, as so will he.
However, an accused may rebut the inference that the facts have been fabricated by calling his solicitor to say that he had communicated them to him without waiving privileged.
It is probably desirable that the judge should warn counsel, or the accused, that the privilege may be taken to have been waived if the accused gives evidence of the nature of the advice.
However, if the defence reveal the basis or reason for the solcitors’ advice, this may amount to a waiver of privilege whenever made.
What may a person do where they are entitled to claim privilege?
A person entitled to claim privilege may refuse to answer the question put or disclose the document sought. The judge should not balance the claim to privilege against the importance of the evidence in relation to the trial.
If a person entitled to claim privilege and either fails to do so or waives it, may someone object to that?
No, no appeal would lie.
If a person entitled to claim privilege fails to do so or waives the privilege, no other person may object.
The privilege is that of the witness, and neither party can take advantage from it.
Thus, if a judge improperly rejects a claim to privilege made by a witness who is not a party to the proceedings, no appeal will lie, for there has been no infringement of the rights of the parties.
In Kinglake (1870) 11 Cox CC 499, where a claim to privilege made by a prosecution witness on the basis that his evidence would tend to incriminate himself was overruled by the judge, it was not open to D to object that the witness’s evidence had been improperly admitted.
How can a party prove a matter in relation to which privilege is claimed?
They are entitled to prove the matter by other evidence
Can an adverse inference be drawn against someone claiming privilege?
No.
How is a claim to privilege determined?
In accordance with domestic law. It will not succeed simply on the basis that it would in some other jurisdiction.
May a person charged in criminal proceedings, called as a witness, be asked a question in XX that may criminate him?
Yes, and they would not be able to rely on the privilege against self-incrimination to refuse answer posed to them. (THEREFORE IT IS A TACTICAL CHOICE – SHOULD WE RISK ADVERSE COMMENT?)
Where requiring someone to comply with a disclosure order where it may incriminate them, what may the judge do?
The courts may substitute a different protection in place of the privilege when requiring a person to comply with a disclosure order, provided adequate protection is available, as when the prosecuting authorities unequivocally agree not to make use of the information.
An affidavit sworn by a person in compliance with such an order may then be inadmissible against the person in any subsequent criminal trial, but the Crown will not necessarily be prevented from using it to demonstrate inconsistency and thus to impugn the person’s credit
Where may there be no tendency to expose someone to a criminal charge (for privilege against self incrimination)?
There will be no tendency to expose to a criminal charge if this is, in effect, denied by the witness. In Ferati [2020] EWCA Crim 1313, a case of fraudulent evasion of tax, D refused to hand over records of his takings, asserting that they contained accurate records. It was held that evidence of the refusal, admitted for its relevance to his credibility, had not deprived him of his right against self-incrimination.
What are ‘penalties’ for the purpose of the privilege against self-incrimination?
Penalties arise mainly under statutes relating to the revenue, and under EC regulations (see, e.g., Rio Tinto Zinc Corporation v Westinghouse Electric Corporation [1978] AC 547).
‘Additional damages’, which may be awarded under statutes for breach of copyright, are not penalties (Rank Film Distributors Ltd v Video Information Centre [1982] AC 380, at p. 425).
A witness may not claim privilege on the basis that his or her answer to the question put would expose him or her to civil liability (Witnesses Act 1806).
Nor does the privilege extend to answers which would expose the witness to criminal liability under foreign law (THOUGH THIS MAY HAVE TO BE REVISITED IN LIGHT OF ART 6 AND EXTRADITION).
the question arose whether the privilege against self-incrimination under Article 6 can apply in relation to pre-trial investigations in one jurisdiction where any trial would take place in another. It was unnecessary to answer the question, but the Privy Council doubted whether it could be answered in categorical terms, because it may depend on whether the applicant risks suffering a flagrant denial of justice in the requesting country. However, it noted that this would not be the case in jurisdictions adhering to the Convention.
Can a trustee rely on the privilege against self-incrimination?
Subject to any statutory exceptions, an agent, trustee or other fiduciary of a party may claim the privilege in an action brought against him or her by that party for breach of that duty
What is the restriction on claiming the privilege against self-incrimination in criminal proceedings?
Restricted to the person claiming it, and does not extend to questions which may incriminate a spouse.
No privilege against incriminating strangers.
Can a company rely on the protection against self-incrimination?
Yes, in the same way as an individual. However, the privilege is that of the company and therefore does not extend to company officers.
