Disclosure Flashcards
Learn definitions of different privileges Learn the cases accompanying them
Define legal advice Privilege
covers documents which are confidential communication between lawyer and client, and was prepared for the purpose of giving or receiving legal advice.
legal Privilege
Parry v Newsgroup Newspapers
- Communication b/w client + sol
A solicitor’s attendance note of a conversation between parties (i.e. normally between the solicitors for each party), or what happens at court, is NOT privilege since, although the court held that the note is a communication, there is no confidentiality in notes of matters at which both sides are present.
Name all five legal advice privilege cases
Parry, a newsreader, traveled by Three Rivers, to Balabel (babble) on Air about India, funded by the Bank of Nova Scotia. Good luck with that Parry.
Parry v Newsgroup Newspapers
Three Rivers DC
Balabel v Air India
The Good Luck - Bank of Nova Scotia
Three Rivers DC v Bank of England
- Communication b/w client + sol
The meaning of ‘client’ for the purposes of legal advice privilege is construed very narrowly (a business unit within the bank was considered the client, rather than the bank itself)
Balabel v Air India
- For the purpose of giving or receiving legal advice
Wider communication between a solicitor and their client will benefit from the privilege provided such communication is within a ‘continuum of communication’
Three Rivers DC v Bank of England
- for the purpose of giving or receiving legal advice
The fact that lawyers have been giving advice through legal spectacles is the key consideration; advice falls under LAP so far as it relates to what should prudently and sensibly be done in the legal context of the case
Bank of Nova Scotia v Hellenic
- For the purpose of giving and receiving legal advice
If client repeats advice internally to people of their same level, this also benefits from LAP
Litigation Privilege
form of professional privilege
A document which is 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 that document is to obtain legal advice, evidence or information for the use in the conduct of litigation which was at the time reasonably in prospect.
NB: remember to add parties names etc when applying
Basic principle of privilege?
‘Once privileged, always privileged’
The Aegis Blaze
Name the THREE cases relevant to Litigation privilege
Waugh v British Railways Board
Re Highgate Traders
USA v Phillip Morris.
Mr Waugh traveled by the British Railways (Board) to Highgate (Traders) in the USA to see Mr Philip Morris
Waugh v British Railways Board
- dominant purpose
where a document has multiple purposes, litigation has to be the dominant purpose. If the purposes are equal or indistinguishable, then the document will NOT be privileged.
Re Highgate Traders
- dominant purpose
When establishing the dominant purpose of a document, the COMMISSIONER of the document should be consulted and not the author of the document (if these people are not the same). It is the commissioner’s dominant purpose that will be used in determining whether or not the document is privileged.
USA v Philip Morris
- litigation reasonably in prospect
Litigation privilege is only available if a party is aware of circumstances rendering litigation between himself and a particular person or class of persons a REAL LIKELIHOOD. A general apprehension of future litigation is insufficient
Without prejudice communication
Documents whose purpose is a genuine attempt to settle a dispute
Substance not form = Rush & Tompkins v GLC
Waiving privilege case?
Great Atlantic Insurance v Home Insurance
Waiving privilege to a part of a document shall result in waiving privilege to the whole fo the document.
[can’t just get Insurance for one of your Homes, must get two Insurance policies for your other house across the Great Atlantic.
