DR - disclosure - privilege

Question 1

Can you selectively waive privilege?

Answer 1

No

• a waiver or privilege over part of a document will waive privilege over all of it (unless the remainder is on an entirely different subject)
• a waiver of one doc waives for them all.

Question 2

Who has the burden of proof when it comes to privilege?

Answer 2

The party claiming privilege

Question 3

What are the types of privilege?

Answer 3

• Legal advice privilege
• Litigation privilege
• Without prejudice communications

Question 4

What is Legal Advice Privilege?

Answer 4

A document which is a confidential communication between a lawyer and client and was prepared for the dominant purpose of giving or receiving legal advice.

ONLY between solicitor and client.

Question 5

What is Litigation privilege?

Answer 5

A document which is confidential communication which is 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.
.
- dominant purpose
- reasonably in prospect

Question 6

What is without prejudice?

Answer 6

A document whose purpose is a genuine attempt to settle a dispute.