Disclosure Flashcards
Parry v Newsgroup Newspapers
(Confidential communication) - communications between parties, or of what happens at court, is not privileged since although a communication there is no confidentiality if both sides are present.
Three Rivers v Governor and Company of the Bank of England
(who is the client) - Adopted a narrow definition of who the client was. The court held that the client was a particular unit within the Bank. Therefore internal memoranda prepared by anyone outside the unit would not be privileged.
Balabel v Air India
(for the purpose of giving/receiving legal advice) - where a solicitor is retained primarily to provide legal advice, wider communications between solicitor and client, even if ancillary to that purpose, will be privileged because they fall within the continuum of communication.
The Good Luck case
(for the purpose of giving/receiving legal advice) - if a client repeats internally legal advice given by his lawyer, e.g to other personnel, then that repetition is also protected by privilege. Communications with in-house lawyers can also benefit from legal advice privilege as long as the communication concerns advice given in legal capacity not general commercial or executive conversation.
Three Rivers (HOL)
(for the purpose of giving/receiving legal advice) ‘presentational advice’ about the best way to present information was covered by legal advice privilege because the lawyers were giving such advice through ‘legal spectacles’
ENRC
(for the purpose of giving/receiving legal advice) - suggets privilege is unlikely to attach to communications with individuals who are qualified lawyers but who are not employed in a legal role, even if they are in fact giving legal advice
R (Prudential PLC and another) v Special Commissioner of Income Tax and another
(for the purpose of giving/receiving legal advice) - SC confirmed legal advice privilege does not currently apply to advice of a legal or quasi-legal nature given by non-lawyers e.g tax advice by accountants
What is the definition of 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”
What is the definition of litigation privilege?
“A document which is 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 propsect”
Waugh v British Railways Board
(the dominant purpose test) - where a document has two purposes, litigation has to be the dominant purpose. If the purposes are equal, the document will not be privileged.
Re Highgrade Traders
(the dominant purpose test) - when establishing the dominant purpose of the document, the commissioner of the document should be consulted not the author of the document
USA v Philip Morris
(the dominant purpose test) - 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 rather than a mere possibility. A general apprehension of future litigation is insufficient.
Starbev GP ltd v Interbrew Central European Holding BV
(the dominant purpose test) - where there is a dispute over whether a document is subject to privilege, the burden of proof is on the party claiming privilege to establish it.
What is the definition of without prejudice privilege?
“Documents whose purpose is a genuine attempt to settle a dispute”
Rush and Tompkins v Greater London Council
When determining whether a document benefits from without prejudice privilege, the court will look to the substance rather than the form (so e.g putting ‘without prejudice’ at the top does not gurantee privilege).
