Types of privilege Flashcards
What are the most important types of privilege?
a) legal advice privilege
b) litigation privilege
c) without prejudice communications
What are some other types of privilege that practitioners may encounter?
- common interest privilege
- privilege against self incrimination
- public interest immunity
Have these privileges been established by common law or statute?
Common law - their reach is defined by case law = subject to some interpretation & constantly developing
What is legal advice privilege?
A document which is a confidential communication between a lawyer & client and was prepared for the dominant purpose of giving/receiving legal advice.
If the document isn’t confidential, will privilege apply?
No.
Is a solicitor’s note of a conversation with this client concerning legal advice confidential communication?
Yes, therefore it’s subject to legal advice privilege.
Is a solicitor’s attendance note of a conversation between parties (normally between solicitors for each party), or of what happens at court, privileged?
No, even though the note is a communication, there’s no confidentiality in notes of matters at which both sides are present
- Parry v Newsgroup Newspapers 1990
Does legal advice privilege apply to advice of a legal or quasi-legal nature given by non-lawyers (ie tax advice given by accountants)?
Not currently, no.
When a solicitor is retained primarily to provide legal advice, will wider communications between solicitor & client, even if ancillary to that purpose, be privileged?
Yes, because they fall within the “continuum of communication”
- Balabel v Air India 1988
Is the ‘presentational advice’ in question (advice including the most appropriate way to present info to the BIU) covered by legal advice privilege?
Yes - the key consideration is that lawyers give such advice through ‘legal spectacles’
(what should prudently & sensibly be done in the legal context of the case)
(case law)
If a client repeats internally legal advice provided by his lawyer (eg to other personnel within his company), does that repetition have the benefit of privelege?
Yes (case law)
- has to be a repetition of his lawyer’s legal advice not his own opinion
Can communication with in-house lawyers enjoy legal advice privilege before the English courts in civil actions?
Yes, as long as the communication concerns advice given in a legal capacity rather than a general commercial or executive capacity with no legal context.
Is it likely or unlikely for privilege to attach to communications with individuals who are qualified lawyers but not employed in a legal role, even if they’re giving legal advice?
Unlikely.
What is meant by litigation privilege?
A document which is a confidential communication which passed between the lawyer and his client or between one of them and a third party, where the dominant purpose in creating the document is to obtain legal advice, evidence or information for use in the conduct of litigation which was at the time reasonably in prospect.
Does litigation privilege extend to documents which are brought into existence for the purpose of prosecuting/defending the claim?
Yes (example - memoranda from one lawyer in a firm to one of his/her colleagues relating to a litigation case, or drafts of statement of case)
- this is the case notwithstanding that they’re not communications between a solicitor and a client nor between one of them and a third party.
If there’s more than one purpose behind the preparation of the document, which purpose will the court look at?
The dominant purpose - the test is of dominance not exclusivity
(some documents are created for a dual purpose - makes establishing the dominant purpose difficult).
Litigation privilege - dominant purpose example
Following an incident on a railway, the railway faces a claim by an injured person. The railway produces a report for the dual purposes of improving safety on the railway & being submitted to the railway’s solicitors for legal advice. As the litigation was at best a purpose, not a dominant purpose, the report wasn’t privileged
- Waugh v British Railways Board 1980
What is meant when the litigation for which the documents are to be used must be ‘reasonably in prospect’?
This means litigation must be a real likelihood rather than a mere possibility - a general apprehension of future litigation is insufficient.
Litigation privilege - ‘litigation reasonably in prospect’ example
Documents produced by a company, not for specific litigation, but because it felt it was constantly under the threat of litigation by customers, weren’t privileged
- USA v Philip Morris 2003
What are without prejudice communications?
A document whose purpose is a genuine attempt to settle a dispute.
Does the document need to be marked ‘without prejudice’ for the privilege to apply?
No.
What if a document is marked ‘without prejudice’?
It may not be a genuine attempt to settle and would therefore fall to be inspected
- the court will look at substance rather than form
Will without prejudice documents be seen by the court?
Not generally, unless the privilege is expressly waived.
What is meant when some documents are marked as being ‘without prejudice save as to costs’?
This means the court will not see the documents contents unless it’s considering the costs of the action or a particular issue
- if it’s considering costs the judge is generally entitled to see the document & can take its contents into account when deciding (eg) the parties conduct & which party is liable for costs/the amount of costs payable.
