Privilege and Immunity

Question 1

Santa Fe International Corpn v Napier Shipping SA 1985 SLT 430

(DIfference between privilege and confidentiality)

Answer 1

 Parties had drawn up a contract agreeing that certain information would remain confidential between the two contracting parties.
 One of the parties was sued in civil proceedings and were asked to produce the confidential documents.
 The party claimed they could not give over the documents as they were confidential.
 Held, just because it was confidential did not mean it had evidential privilege.
 So they had to hand over the documents.

Question 2

Conoco (UK) Ltd v The Commercial Law Practice 1997 SLT 372.

legal professional privilege

Answer 2

 Recognised that privilege relates not only to what is said but also extends to the clients identity.

Question 3

Micosta SA v Shetland Islands Council 1983 SLT 483

legal professional privilege

Answer 3

 Action was raised against a local authority.
 Alleged that the Local Authority had abused statutory powers.
 Wanted the discussions between the lawyers and the accused to be disclosed.
 Held that Privilege still existed and protected them. The only circumstances in which the correspondence between a party and his legal advisers may not be privileged are where fraud or some other illegal act is alleged against the party and it is suggested that his legal advisers have been directly concerned in carrying out the illegal transaction

Question 4

Conoco (UK) Ltd v The Commercial Law Practice 1997 SLT 372.

Answer 4

 CLP, a firm of solicitors, wrote to C intimating that they acted for an unnamed client who had information about a significant overpayment by C to a third party which was aware of the overpayment but had not returned the money. The nature of the payment was such that it would be very difficult to trace. CLP’s client would provide the necessary information in return for a proportion of the sum recovered. C sought an order under the Administration of Justice (Scotland) Act 1972 s.1 for disclosure of the name of CLP’s client. CLP maintained that the identity of their client was privileged on a solicitor/client basis.
 Held, that the fact that CLP’s client had attempted to take advantage of a fraud by a third party on C deprived CLP of the right to keep their client’s identity confidential as a matter of privilege. CLP was ordered to disclose the name of their client to enable C to bring proceedings against the client to reveal the identity of the third party.

Question 5

Burns v Burns 1964 SLT (Sh Ct) 21

Communications in aid of negotiations

Answer 5

 Woman claimed that husband had borrowed money from her.
 Both wrote letters to each other marked with “without prejudice”.
 Husband in his letter claimed that the wife had lent him money but he had paid it back.
 Admitting something as a fact was not covered by evidential privilege.
 Marked “without prejudice” does not help when a statement of fact is made. The statement of fact can be relied upon in court.

Question 6

R v Lewes Justices, ex parte Home Secretary [1973] AC 388

Privilege - Public interest Immunity

Answer 6

On appeal by R, held, that the question was not one of Crown privilege; the public interest required such communications to be immune from disclosure so that the Board might obtain the fullest possible information without its informants fearing repercussions.

Question 7

*D v National Society for the Prevention of Cruelty to Children [1978] AC 171

(Public interest Immunity)

Answer 7

 The NSPCC or a local authority is entitled to privilege from disclosing the names of its informants in relation to child neglect or ill-treatment in the same way and on the same basis as police informants.