Privilege and Immunity Flashcards
What is the distinction between privilege and confidentiality?
In general terms, confidentiality is a legal duty which means that they have a duty to keep the discussions they have with clients private. Privilege is a legal right, which takes the form of an exception to do something.
⁃ In general terms privilege is part of the law of evidence, whereas confidentiality is part of the law of obligations. The general rule is that confidential information as such is not covered by evidential privilege (see eg Santa Fe International Corpn v Napier Shipping SA 1985). Probably in this context ‘confidentiality’ is being used in a loose sense as equivalent to ‘privilege’ (see eg More & Root Wimpey Highland Fabricators Ltd 1983
Santa Fe International Corpn v Napier Shipping SA 1985
This case concerned a civil action in which the pursuer wanted to obtain documents held by the defender (there is a procedure for doing this) but the defender stated that the documents in question were contracts with third parties and the contracts contained clauses which placed duties of confidentiality in respect of the details of the contract. Nonetheless the court held that private duties of confidentiality do not amount to legal privilege and therefore in the interests of justice the defender’s were required to hand over the contractual documents despite the requirement of confidentiality.
More & Root Wimpey Highland Fabricators Ltd 1983
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What does privilege mean under the law of evidence?
Under the law of evidence, privilege means the right not to give evidence in court or the right not to produce a document which is required for purposes of a court action. This attaches to a particular person, which means that they have the right not to divulge information on a particular subject.
Public interest is the most common instance when privileged information becomes used.
Can persons waive their right to privilege?
Yes – Also, persons can choose to waive their privilege so the other party to the proceedings cannot object to those proceedings.
Does the information remain privileged when it is told to third parties? Can the third party disclose information?
The court decides whether the information was obtained lawfully and discusses privacy rights etc, and the wider interest of justice. Court will decide whether information is to be privileged or not.
What are the recognised categories of privilege in Scots law?
i) Legal professional privilege
ii) Communications post litem motam (communications made in contemplation of litigation)
iii) Communications between spouses
iv) Communications in aid of negotiation
What is legal professional privilege?
This deals with privilege attaching to communications between a client and professional (legal adviser). It applies to solicitor-client communications and also to professional legal advisors (e.g. advocates). But it does not apply to legal advice given by a person who is not professionally legally qualified. The reasoning is that persons should be able to speak freely to their advisors.
Where the client authorises her solicitor to tell someone the information, this is effectively waiving her right to privilege.
If the client decides that she wants to cite her lawyer as a witness it is also waived.
s265 Criminal Justice (Scotland) Act
where any person who has been agent of the accused… [look up**].
What does legal professional privilege cover?
It covers all communications between the lawyer and client whether or not they are to do with litigation. Covers not only the content of solicitor-client communications, but even the client’s identity
*Conoco (UK) Ltd v The Commercial Law Practice 1997
⁃ A client approached the solicitors and asked that the solicitors should write to a company and tell them that he was in possession of interesting information. The information was that he knew of a fraud committed against the company by a third party (an over payment that the company had made to an individual).
- The client wanted his identity to be kept secret from the company and it was held that the privilege extended to this fact.
- The company brought a petition under the Administration of Justice Act to order a client to disclose information and its digression to order someone who the court feels might go on to be a party in civil proceedings. The company tried to use this section of the Act, and in turn they claimed confidentiality…
- The court decided that if a client had communicated a fact known to him, in the course of making instruction to a solicitor then the solicitor must make that fact confidential.
- So if the communications relate to advice or instruction it is confidential.
- Also privilege can attach to the identity of the client.
- Held: by instructing the solicitor to write the letter to the company, the client had waived confidentiality, in respect of the part of information that he asked the lawyer to convey (I.e. That there was an individual that they had overpaid money to) BUT he had not waived confidentiality in relation to his identity.
- There was a public interest reason for disclosing the information but this case is authority for the fact that identity was privilege information.
⁃ However note that there is an exception to the privilege where either the lawyer or the client are involved in some illegal act. And in this case the particular lawyer client relationship was so bound up in an illegal act, the privilege could not apply. Thus the lawyers had to reveal who the client was.
What if there is no solicitor-client relationship?
HM Advocate v Davie (1881)
⁃ A man approached a solicitor to ask if the solicitor would act for him in a civil action. The solicitor declined. The would-be client was prosecuted for perjury said to have happened during that civil action and the question here was whether the Crown could require the solicitor who had refused to act earlier to disclose what the now accused had said to him? The judge allowed the evidence but it was marked as an issue which should be decided by a larger court, but nothing came of this because the charge was found not proven anyway.
⁃ GM: If this case is authority for the view that privilege does not extend to communications made in trying to set up a lawyer-client relationship then it must be regarded as a wrong decision since most legal systems do grant evidential privilege in this scenario.
- Doubts as to whether this is representative of Scots law. In England the privilege attaches as soon as lawyer client relationship is in contemplation.
What is the exception where the solicitor is alleged to have been concerned in an illegal act by the client?
Micosta SA v Shetland Islands Council 1983
⁃ An action against a local authority for an alleged abuse of statutory powers by the authority. The pursuer’s wished to see documents passing between the authority and their solicitors and they said that since the action concerned an alleged illegal act (breach of statutory powers) lawyer client privilege did not apply. The court held that this does not follow - the exception applies only where the illegal act is itself part of the lawyer client relationship (otherwise you could never get legal advice if you were accused of doing something illegal).
- Held privilege would not apply if the legal advisers had been directly involved in the action complained of.
“The only circumstances in which the general rule about privilege will be suspended is fraud etc…which is the subject matter of inquiry”. [Look up].
- This applies regardless of whether the law agent knew that they were involved in a legal act or not —Kelly v ???
⁃ *Conoco (UK) Ltd v The Commercial Law Practice 1997
⁃ See above.
What are communications post litem motam (communications made in contemplation of litigation)?
Communications post litem motam are ones made in contemplation of litigation. They are always protected by legal professional privilege, even if they are not themselves solicitor-client communications – e.g. communication between solicitor and possible expert witness (third party). Any communication in connection with the litigation is privileged.
General rule: no party can recover material which the other party has drawn up for the purpose of preparing his own case (so one side cannot contact the other side and ask for material they’ve prepared for that case)
Anderson v St Andrew’s Ambulance Association 1942
⁃ The pursuer was bringing an action against an ambulance and omni bus association for damages sustained.
- This case concerned a collision between an ambulance and an omni bus. The owners of the bus took various photographs of the locus, the bus itself and with permission photos of the ambulance too. A man who had been injured in the accident sued both the ambulance and bus owners. The ambulance owners claimed that the fault was that of the bus and sought to recover the photographs taken by the bus owners. It was held that these photographs were taken with a view to defending litigation and therefore not recoverable - they were privileged.
- Two of the defenders claimed the accident was the fault of the other two and vice versa. In issue here, a motion (request by court) for the first two defenders were seeking a court order to gain access to documents which the other defender had. This was initially granted but the decision was heard again by inner house.
- Held: no party can recover from another in preparation of a case.
There is an exception to this privilege that if there is an immediate inspection or examination following an incident which is done solely for the purpose of finding facts by an employee or person responsible for safety then those reports are not made with a view to litigation and are therefore not covered by privilege.
⁃ The difficulty is drawing the line between reports solely for finding facts and reports with a view to litigation is very difficult.
More v Brown and Root 1983
⁃ Concerned damages arising from an accident where a man fell from a rugged ladder (scaffolding?). He said that the defender’s safety officer had taken photographs of the locus and that they were taken shortly after the accident. He sought to recover these photographs for his own case.
- It was held that the photographs couldn’t be recovered by the man claiming damages because they had been taken with a view to protecting the defender’s position in any forthcoming litigation.
- The motion here was refused on similar grounds to Young — reports must be made at the time of accident, by employees, just after the accident happened.
Marks & Spencer v British Gas 1983
⁃ This involved an explosion of gas. An action was raised by M&S. M&S wished to recover all documents made immediately after the explosion. The question here was whether the documents had been made solely to investigate the facts or had they been made to protect the defenders in any ensuing litigation? The court accepted that that distinction very much depended on the facts and circumstances of each case but that in this particular case the reports themselves were mainly concerned with a scientific explanation of the reasons for the explosion rather than written with a view to litigation.
- Here the court drew a distinction between reports made in contemplation of judicial proceedings and making inquiries.
- General rule: reports and things drawn up in contemplation of litigation are privileged. Exception: reports made by employees to employer are not if they arise around the time of the accident.
Young v National Coal Board 1957
⁃ A man was killed at work because of a fault in electrical equipment. After the accident the employer’s instructed an expert to carry out an examination of the machinery. Could this report be recovered by the deceased man’s family? It was held that in the facts of this case no - the defendants instructed the expert with a view to protecting their decision in any future litigation.
- His relatives moved for diligence (trying to recover a report made after the accident about the possible cause of the explosion that killed the electrician). The court rejected this as the report was not made at the time of the accident.
What happens if one party to the litigation tries to rely on a chain of litigation?
This means that this person has waived any privilege that might otherwise apply to the rest of the communication or correspondence. To avoid “cherry-picking” of evidence.
Evidence (Scotland) Act 1853, s 3
In civil cases: Evidence (Scotland) Act 1853, s 3 provides that nothing in that provision:
⁃ “shall in any proceedings render any husband competent or compellable to give against his wife evidence of any matter communicated[ It only applies to communications between husband and wife. It wouldn’t therefore apply to evidence about observations.] by her to him during the marriage, or make any wife competent or compellable to give against her husband evidence of any matter communicated by him to her during the marriage.” In other words, neither husband or wife can be forced to give evidence about communications which happen during the course of their marriage. This applies to any communications (not just those relating to proceedings).
