Types of Privilege Flashcards
What are the main types of privilege?
1) Legal advice privilege
2) Litigation privilege
3) Without prejudice communications
Are these privileges established by case law or statute?
Case law
What is legal advice privilege?
Confidential communication between lawyer and client prepared for dominant purpose of giving or receiving legal advice
What if the legal advice is not confidential?
Privilege will not apply
Is a solicitor’s note of a conversation with client concerning legal advice be confidential communication?
Yes
Is a solicitor’s attendance note of conversation between parties (i.e. between solicitors for each party), or of what happens at court, privileged?
No, this is not confidential communication
Where a solicitor is retained, will wider communications, even if ancillary to the purpose, be privileged?
Yes, because they fall within the “continuum of communication”
Which case establishes the continuum of communication?
Balabel vs Air India (1988)
If a client repeats solicitor’s advice to others, is that still privileged?
Yes
When would repeating solicitor’s advice not be privileged?
If client is giving their opinion on it, rather than repeating the actual legal advice
What is litigation privilege?
- Confidential
- Communication between lawyer and client
- Or between lawyer / client and third party
- Dominant purpose is to obtain evidence for litigation
- Litigation reasonably in prospect
Does communication between lawyer and witness, or client and witness fall within litigation privilege?
Yes
What is dominant purpose for litigation privilege?
Court will look at the main purpose (not exclusive) – if it is for the purposes of litigation, then it will satisfy this requirement
Imagine an accident on the railway. The railway faces a claim by an injured person. Railway produces a report for dual purposes of improving safety and being submitted to railway’s solicitors for legal advice. Is this within litigation privilege?
No, as the litigation was at best a purpose, not a dominant purpose.
What is the meaning of at the time reasonably in prospect for litigation privilege?
Litigation looks like a real likelihood rather than mere possibility – a general apprehension does not suffice
What is the meaning of without prejudice communications?
A document whose purpose is a genuine attempt to settle a dispute – may or may not have ‘without prejudice’
If it have without prejudice marked in the document, is it automatically privileged?
No, the court will look at substance rather than form
What does it mean to say without prejudice save as to costs?
The court will not see the document’s contents unless it is considering the costs of the action or particular issue.
If opponent solicitor asks you for something, you ask the client, and then revert back to the solicitor. Is the whole interaction privileged?
No, only the conversation with the client is privileged.
