Privilege Flashcards
What are the 2 types of privilege admissible evidence may be excluded for?
Legal professional privilege and privilege against self-incrimination.
What may a person entitled to claim privilege refuse?
May refuse to answer questions or disclose documents sought.
What happen if a person entitled to privilege does not claim it?
No other person may claim it. Whether the person failed or waived the right to privilege.
What recourse is there to the judge rejecting privilege?
None - as it is the witness’s who is not a party to proceedings, there’s no recourse as there’s been no infringements of rights.
What can parties do if a witness claims privilege?
Parties are entitled to them prove the matter for which the witness was called by other means.
Wentworth v Lloyd (1884)?
No adverse inferences may be drawn against a party or witness claiming privilege.
Criminal Evidence Act 1898, s.1(2)?
A person charged in criminal proceedings called as a witness may be asked any question in cross-examination BUT that which incriminates him with the offences charged.
Blunt [1942]?
No witness needs answer something that would expose them to a charge, penalty or forfeiture of property.
Can a witness claim privilege to protect themselves from civil liability?
No. Also can’t claim it to protect them from foreign law.
Pitt [1983]?
Privilege against self-incrimination does not extend to answers which would incriminate a spouse.
What is the position of companies and privilege?
Companies may claim privilege as an individual may, but this doesn’t extend to incrimination of its office hours.
What are the 2 types of confidential communication a client or legal adviser must refuse to produce?
Legal advice privilege and Litigation privilege
Define legal advice privilege?
communication /documents between client and legal adviser to obtain advice - even if there were no proceedings contemplated at the time
Define litigation privilege?
communications between client or legal adviser and 3rd parties in relation to pending litigation.
Who bears the evidential burden of establishing that communication or a document is protected by privilege?
The party claiming the privilege
How should the court evaluate a privilege claim?
Court MUST consider evidence and reference other material where possible. Mostly this evidence should come from the party, not the lawyers involved. THEN as a last resort the court can consider the documents themselves.
When may the court decide privilege claims by looking at the privileged documents?
ONLY as a last resort. Only if there’s credible evidence those claiming privilege have misunderstood their duty or there’s no alternative to deciding the issue.
How do you establish legal advice privilege?
By showing that obtaining or giving advice was the DOMINANT PURPOSE of communication/documents.
What is not covered by legal advice privilege?
Documents prepped by third parties for lawyers. Although instructions from solicitor to barrister are covered.
In what circumstances can legal advice privilege apply to corporate clients?
In communications with employees/officers expressly designated to act as ‘the client’ + send to the board.
NOT to documents prepared by employees or ex parties for legal advice purposes.
WH Holdings Ltd v E20 Stadium [2018]?
Established the 5 principles giving scope to litigation privilege
What is the 1st E20 principle governing litigation privilege?
The privilege begins existence when litigation is in REASONABLE CONTEMPLATION
What is the 2nd E20 principle governing litigation privilege?
Once litigation privilege is engaged, it covers communication between parties/solicitors and 3rd parties for the sole purpose of obtaining info or advice in connection with proceedings.
What is the 3rd E20 principle governing litigation privilege?
Conducting litigation - where the privilege exists - includes the time in deciding whether to litigate or to settle the dispute
