privilege - syllabus area 20

Question 1

how may relevant and other admissible evidence be excluded?

Answer 1

on the grounds of privilege against self-incrimination or legal professional privilege - F10.1

Question 2

a person entitled to claim privilege may refuse to answer the question put or disclose the document sought. true or false?

Answer 2

true - F10.1

Question 3

How should a person prove a matter by which the other party claims privilege?

Answer 3

by other evidence

Question 4

can adverse inferences be drawn where there is privilege?

Answer 4

no adverse inferences may be drawn against a party or witness claiming privilege - F10.1

Question 5

When would a witness be permitted to reduce to produce documents or refuse to answer questions in court?

Answer 5

if to do so would, in the opinion of the judge, have a tendency to expose the witness to any criminal charge, penalty or forfeiture (of property) which the judge regards as reasonably likely to be preferred or sued for - F10.2

Question 6

What may the courts do when requiring a person to comply with a disclosure order?

Answer 6

the courts may substitute a different protection in place of the privilege, provided adequate protection is available i.e, when prosecuting authorities agree not to use the information - F10.2

Question 7

can a witness claim privilege on the basis that their answer to the question will expose them to civil liability?

Answer 7

no they cannot - F10.2

Privilege does not also extend to answers which may expose the witness to criminal liability under foreign law

Question 8

Who is privilege restricted to?

Answer 8

the person claiming it -F10.5

It does not extend to questions which the answers would incriminate a spouse

Question 9

who else can claim privilege?

Answer 9

a company - F10.5

the privilege does not extend to incrimination of its office holders

Question 10

is there privilege against incriminating strangers

Answer 10

there is no privilege against incriminating strangers - F10.5

Question 11

A client may, and their legal adviser must (subject to the client’s waiver), refuse to give oral evidence or to produce documents relating to what type of confidential communication?

Answer 11

the purpose of the communication with a lawyer is to advance or act in a process of litigation (litigation privilege)

to obtain advice about any matter, whether or not litigation was contemplated at the time (advice privilege) - F10.16

Question 12

Who does the evidential burden lie with?

Answer 12

the party claiming privilege - F10.16

if not satisfied on the basis of evidence, the court may inspect the documents, but not do so until there is credible evidence showing that those claiming privilege may have misunderstood their duty or are not to be trusted with decision-making

Question 13

what else does legal advice privilege cover?

Answer 13

documents evidencing such communications between client and adviser, and documents intended to be such communications, even if not in fact communicated - D10.19

Question 14

to establish legal advice privilege, what must be shown?

Answer 14

the purpose of obtaining or giving legal advice was the dominant purpose - F10.19

communications must have been made in the course of the relationship between client and adviser or with a view to its establishment

it extends to instructions given to or by the solicitor ti the barrister

Question 15

are documents from or prepared by third parties to lawyer covered by legal advice privilege?

Answer 15

no - F10.19

Question 16

Legal advice privilege with corporate clients covers?

Answer 16

communications with officers or employees designated two act as the client and not documents prepared by other employees or ex-employees, even if prepared for the purpose of obtaining legal advice. - F10.20

they are privileged if sent or given to theBoard of Directors directly

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Question 17

does litigation privilege cover third parties ?

Answer 17

yes - F10.26

provided it is for the sole or dominant purpose of the conduct of the litigation

Question 18

what does conducting litigation include?

Answer 18

whether to litigate or whether to settle the dispute rising to litigation - F10.26

Question 19

Litigation privilege only applies in the case of litigation that is adversarial, not investigative or inquisitorial. true or false?

Answer 19

true - F10.26

it extends to the identity and other details of witnesses intended to be called in adversarial litigation

Question 20

When will privilege attach to a document?

Answer 20

it will attach to a copy of an unprivileged document if the copy was made for the purpose of litigation and the original is not, and has not at any time been, in the control of the party claiming privilege. - F10.27

Question 21

When does legal advice privilege not apply?

Answer 21

when the advice is intended to facilitate or guide the client in the commission of a crime or fraud, the advice is not privileged - F10.36

Question 22

are communications between an accused and the solicitor prior to police interview privileged?

Answer 22

yes - F10.41

if the accused does not want inferences to be drawn from his silence because of legal advice, he will have to state the basis or reason for the advice, which may amount to waiver of privilege