4.6 Types of privilege Flashcards
Which provision allows a party to assert privilege over a document and withhold inspection?
CPR 31.3(1)(b)
the party disclosing the document has a right or a duty to withhold inspection of it
What are the three most important types of privilege?
1. Legal privilege 2. Litigation privilege 3. Without prejudice communications
Is privilege derived from CPR or case law?
Case law - it is a common law right.
What is legal advice privilege?
A document which is a confidential communication between a lawyer and a client and was prepared for the purpose of giving or receiving legal advice.
Note that:
1.
If the document is not confidential, privilege does not apply;
2.
There is no need for the document to have been prepared in connection with litigation.
Is an attendance note of a meeting between both sides under privilege?
Parry v Newsgroup Newspapers [1990] NLJ 1719 (CA)
A meeting between both sides is a communication but it is not confidential.
Are communications between solicitor and client privileged if they do not constitute advice per se?
Balabel v Air India [1988] Ch 317
Communications that are ancillary to the advice will fall within the ‘continuum of communication’ and so be privileged if the main purpose of the relationship is to give advice.
What is the effect on privilege of a client disseminating the privileged advice that she has received?
Bank of Nova Scotia v Hellenic Mutual War Risks Association (the Good Luck) (1992) 2 Lloyd’s Rep 540
1.
Privilege attaches to internally circulated documents relating to lawyer-client communications.
2.
Privileged passages in documents not otherwise privileged do not need to be disclosed.
Does privilege apply to legal or quasi-legal advice given by individuals who are not qualified lawyers?
R (Prudential PLC) v Special Commissioner of Income Tax [2013] UKSC 1
Privilege does not apply.
What is litigation privilege?
A confidential communication
which passed between the lawyer and his client or
between one of them and a third party,
where the dominant purpose in creating the document is to obtain legal advice, evidence or information
for use in the conduct of litigation
which was at the time reasonably in prospect.
In litigation-privileged communications, what is a third party likely to be?
A witness or expert witness.
What is the leading case regarding whether a document is for the purpose of litigation?
Waugh v British Railways Board (“BRB”) [1980] AC 521
Waugh v British Railways Board (“BRB”) [1980] AC 521
Waugh v British Railways Board (“BRB”) [1980] AC 521
1.
To enjoy litigation privilege, a document’s dominant purpose must be to obtain legal advice, evidence or information for use in the conduct of litigation.
2.
Consult the commissioner of the document, not its author, to ascertain its purpose.
Held: a document that was equally for the purposes of litigation and equally for another purpose was not privileged.
What is the leading case on when litigation is ‘reasonably in prospect’ for the purposes of whether litigation privilege applies?
USA v Philip Morris [2003] EWHC 3028
Under what circumstances will litigation be ‘reasonably in prospect’ for the purposes of asserting litigation privilege?
USA v Philip Morris [2003] EWHC 3028
Principle: A general apprehension of future litigation will not render litigation reasonably in prospect.
Litigation is only reasonably in prospect where the party is aware of circumstances rendering litigation with a specific individual or class of persons a real likelihood.
Facts: A tobacco company claimed privilege on the grounds that it was constantly under threat of litigation.
What is litigation?
Litigation is adversarial. Litigation does not include, for example, early stage investigations by the FCA.
However, litigation privilege does cover documents that were brought into existence for the purpose of prosecuting or defending a claim.
