privilege

Question 1

Legal advice privilege

Answer 1

lawyer and client prepared for the dominant purpose of giving/ recovering legal advice

it is not necessary that litigation is contemplated

if a person repeats legal advice internally then its privileged

if the document is not confidential, privilege will not apply.

Question 2

litigation privilege

Answer 2

“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 prospect

if the document is not confidential, privilege will not apply.

Question 3

Without prejudice communications
what does the court look at?

Answer 3

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

• Court looks at the substance not the form =

o The document need not be marked ‘without prejudice’ for the privilege to apply. Conversely, a document marked ‘without prejudice’ may not be a genuine attempt to settle and would therefore fall to be inspected.

• Without prejudice documents will not generally be seen by the court unless the privilege is expressly waived
• Some documents are, however, marked as being ‘without prejudice save as to costs’. This means that the court will not see the document’s contents unless it is considering the costs of the action or a particular issue. If it is considering costs, the judge is generally entitled to see the document and can take its contents into account when deciding (for example) the parties’ conduct and which party is liable for costs/the amount of costs payable.

Question 4

Without prejudice communications

Answer 4

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

• Court looks at the substance not the form =

o The document need not be marked ‘without prejudice’ for the privilege to apply. Conversely, a document marked ‘without prejudice’ may not be a genuine attempt to settle and would therefore fall to be inspected.

• Without prejudice documents will not generally be seen by the court unless the privilege is expressly waived
• Some documents are, however, marked as being ‘without prejudice save as to costs’. This means that the court will not see the document’s contents unless it is considering the costs of the action or a particular issue. If it is considering costs, the judge is generally entitled to see the document and can take its contents into account when deciding (for example) the parties’ conduct and which party is liable for costs/the amount of costs payable.

Question 5

what can a Specific disclosure order ask for (3)

Answer 5

an order that a party must do one or more of the following things:
- Disclose specific documents / classes of documents specified in the order
- Carry out a search to the extent stated in the order
- Disclose any documents located as a result of that search

Question 6

When will an application for specific disclosure be successful, what two factors are considered? (3)

Answer 6

Depends on the case – when court is considering whether to make an order:
- The court will take into account all the circumstances of the case
- The court will take account of the overriding objective (including, for example, the proportionality and reasonableness of making an order for specific disclosure)
- If the court decides that the party against whom specific disclosure is sought has ‘failed adequately to comply with the obligations imposed by an order for disclosure’, the court ‘will usually make such order as is necessary to ensure the obligations are properly complied with’

Question 7

procedure for specific disclosure

Answer 7

• Application: must specify the order sought and documents sought with evidence
• Require respondent to specify the documents that are no longer under his control or which he has a right to withhold from inspection

Question 8

non- party disclosure
when is the order made?

Answer 8

The court has the power (may) to order a person who is not a party to the proceedings to give disclosure of documents

An order can be made where:

a) The documents are likely to support the applicant’s case or adversely affect the case of one of the other parties to the proceedings; and

b) Disclosure is necessary to dispose fairly of the claim or to save costs.

-court may, not must, order non-party disclosure

Question 9

non- party disclosure procedure, what must the application state?

Answer 9

Application must:

• specify the order sought, including listing the documents sought
• be supported by evidence
• require the respondent to specify those documents which are no longer under his control or which he has a right to withhold from inspection

The application notice must be served on the respondent (the non-party) and any other party to the proceedings