Privilege Flashcards
What are the general rules applying to both forms of privilege (LPP & privilege against self-incrimination)?
1) A person entitled to claim privilege may refuse to:
(a) answer a Q put, or
(b) disclose a doc sought
2) Judge should not balance claim to privilege against importance of evidence to trial
3) If party entitled to claim privilege fails to do so / waives privilege = no-one can object (privilege belongs to the W alone)
4) A party seeking to prove a particular matter in re: to which anor party/W claims privilege is entitled to prove the matter by other evidence
5) No adverse inferences may be drawn against a party/W claiming privilege
What’s the scope against self-incrimination?
Scope = Any W (other than D) is not bound to answer Qs / produce docs if it would tend to incriminate him in E&W law
- When requiring a person to comply w/ a disclosure order — may substitute different protection in place of privilege, provided adequate protection available
E.g. P authorities unequivocally agree not to make use of the information
What does not count as ‘incriminate’?
1) Additional damages awarded under statute for breach of copyright
2) Exposure to civil liability
3) Exposure to criminal liability under foreign law
Is privilege restricted to the person claiming it?
Yes, Incrimination must be of person claiming privilege
- Does not extend to Qs answers to which tend to incriminate a spouse
- Does not extend to strangers
- Can be claimed by company – but is of the company itself, & does not extend to its office holders
- Can be claimed by agent/trustee/fiduciary of a party in an action brought by that party for breach of duty
What’s the scope of legal professional privilege? 2 types
1) Legal advice privilege: communications between the client & his legal adviser made for the purpose of enabling the client to obtain / the adviser to give legal advice about any matter
2) Litigation privilege: communications between the client / his legal adviser & third parties, the sole or dominant purpose of which = enable adviser to advise/act in re: litigation that was pending / in client’s contemplation
- Also covers items enclosed with / referred to in such communications & brought into existence:
(i) in connection w/ giving legal advice,
or
(ii) in connection w/ or in contemplation of legal proceedings & for the purpose of such proceedings
How can one establish proof of privilege?
(1) Evidential burden of establishing lies on party claiming privilege:
(a) evidence should normally come from the client
(b) evidence from lawyers = of secondary value
(2) Q of privilege is for the court; mere assertion not determinative
(3) If court not satisfied that claim to privilege made out, as a last resort court may inspect the documents — but should not do so unless:
(a) credible evidence that those claiming privilege have misunderstood their duty / are not to be trusted with the decision-making, or
(b) there is no reasonably practicable alternative
What are the general principles of Legal Advice Privilege?
General principles:
(1) Covers communications between clients & legal advisers for the dominant purpose of obtaining / giving legal advice
(2) Covers documents evidencing comms / intended to be such comms even if not in fact communicated
(3) Communications must have been made either in course of relationship between client & legal advisor, or with a view to its establishment
(4) Extends to instructions given by the client to solicitor; or by solicitor to barrister; or opinion of counsel
(5) Does not extend to docs emanating from/prepared by independent 3Ps & passed to lawyer for purposes of advice
Does legal advice privilege covers corporate clients?
Yes, but limited to:
(1) communications with either: (a) the board of directors
(b) those officers/employees expressly designated to act as ‘the client’ BUT*
*Does not include employees authorised to speak to the lawyer for the purpose of carrying out investigations to provide legal advice
(2) docs prepared by other (ex-)employees, even if prepared w/ dominant purpose of obtaining legal advice & sent to the lawyer/prepped at his request
Who does legal advice privilege protects?
protects lawyer, client
Who does Litigation privilege protects?
lawyer, client, potential expert
What are the general principles of Litigation Privilege?
(1) Privilege engaged when litigation is in reasonable contemplation
(2) Once engaged, it covers communications between parties / their solicitors & third parties for the purpose of obtaining information / advice in connection w/ the conduct of the litigation, provided it is for the sole / dominant purpose of the conduct of the litigation
(3) ‘Conducting the litigation’ includes deciding whether to litigate & whether to settle the dispute giving rise to the litigation
(4) Docs in which such info / advice cannot be disentangled or which would otherwise reveal such information / advice = covered by privilege
NB no separate head of privilege covering internal communications falling outside the ambit of the privilege as described above
Privilege only applies re: adversarial litigation (not investigative or inquisitorial) - Is this statement true?
yes
Extends to identity/other details of Ws intended to be called (whether/not identity = the fruit of legal advice) - is this statement true?
Yes
What types of documents are not covered by litigation privilege?
(1) docs obtained by a party/his adviser for purpose of litigation but not created for that purpose
(2) copies / translations of unprivileged docs made for purpose of litigation
- Unless copy made for purpose of litigation & original is not + has never been in the control of party claiming privilege
(3) where solicitor has copied/assembled a set of 3P documents for purpose of litigation which, if produced, will betray the trend of advice he is giving
- But not a selection of own client documents, or copies/translations, made for purpose of litigation
Is communications in furtherance of crime or fraud protected by privilege?
Not protected
E.g. if D asks lawyer for advice seeking to guide them in committing crime
