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Legal Professional Privilege Notes

BCL Law Notes > Principles of Civil Procedure Notes

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Legal Professional Privilege Policy & Justifications Arguments For Litigation privilege --- Fair trial
? Right to fair trial o Equality of arms by equipping with legal knowledge --- unity of client
& lawyer
? Can't lead misleading case contrary to instructions
? BUT don't have to disclose to other side
? Lawyer's knowledge of positive & negative aspects of case allows proper evidence-gathering o Access to justice --- through representation
? [?] right to defence (in criminal context) --- adequate time &
facilities to prepare, legal representation: Art 6(3); S v Switzerland (1991) o Based on---
? Art 6 (fair trial) --- access to justice & equality of arms: Campbell & Fell v UK (ECmHR)
? CL in UK
? Broader justification --- that right to fair trial requires that must be allowed to prepare case in confidence o Therefore extends to comm b/w client/lawyer & 3P (witnesses/experts)
--- protects proofs of witnesses: Lord Denning in Re Saxton o Should also extend to litigants in person // any other preparation for a case not involving lawyers
? Fundamental/constitutional right, rather than mere proprietary right --- any derogation to be consistent w Art 6 Advice privilege --- Rule of Law
? Grew out of litigation privilege --- but confined to client-lawyer communications
? Law must be capable of guiding conduct --- clear, stable, prospective, etc --- to be understood advice must be available o Ability to maximise benefits --- eg tax aims to guide conduct but cannot if people don't understand it o Ability to avoid penalty --- nulla poena sine lege
? Ignorance of the law no excuse --- rules that are unknown or hard to understand o Unless confidential advice available, benefits will be monopolised by legally savvy / legally untrained might unwittingly suffer detriment
? Judicial support o Lord Hoffmann in Morgan Grenfell (2002) --- fundamental common law right o Lord Scott in Three Rivers (No 4) ---
? Individuals & corporations seek advice on affairs

This is in the public interest Full disclosure necessary, and may not be possible without confidentiality Instrumental justification --- full & frank disclosure encouraged by privilege will lead to o People following the law o Efficiency in settling matters o ? Hale LJ in Three Rivers - in everyone's interest that people get advice that is as accurate as possible?Both --- Assumption that full disclosure won't be made unless confidential
? Assumes that legal representation in litigation will be ineffective // legal advice unavailable because client not willing to make full disclosure
? Clients may not disclose because of---
o Illegality/unfavourable aspects o Human sensibilities - wills, hiding assets from spouse, etc - not legally admissible but client doesn't know that: Lord Rodger in Three Rivers (No 6) o Commercial sensitivities - in corporate context
? Judicial support ---
o Confidentiality essential to ensure full disclosure & effective legal advice --- More than a rule of evidence --- fundamental condition on which the administration of justice as a whole rests: Lord Taylor in Ex parte B (1996) o Otherwise lawyer is "like a champion going into battle unconscious of a gap in his armour": Lord Simon in D v National Society for Prevention of Cruelty to Children
? Litigation<>Advice o Client more likely to hold back in context of (actual or contemplated) litigation o Different interests --- to win <> to get accurate advice --- rational client seeking advice would make full disclosure: Longmore LJ in Three Rivers (No 5) o May still be some reluctance to disclose for advice where risk of prosecution, human/commercial sensitivities --- ordinary confidentiality may not suffice --- removal of AP would leave them to live with uncertainty waiting for litigation
? Although assumption is not always true, no other rule provides certainty Common rationale --- need for private sphere for legal communication
? Grounding in ECHR o Litigation privilege --- Art 6 o Both --- Art 8 (privacy)?
? not absolute --- and difficult to invoke in light of confidentiality from court processes only between lawyer & client Hypothesis: true rationale is unity of lawyer & client, as required by rule of law and fair trial justifications


Certainty of scope is critical to achieve goal

Arguments Against
? No other profession attracts such absolute privilege
? Bentham - Common law placing importance on availability of information before courts
? Only gives advantage to individual, not to administration of justice o BUT presumes that people know they have committed a wrong - questions of liability may be complex
? Advice will be sought anyway - no need for privilege o EG take-over transaction - directors likely to get advice in any event o BUT scope of disclosure in seeking advice may differ
? Can it justifiably be applied to everyone?
o Eg anarchist seeks advice on terrorist acts?
o If causal connection between advice & illegitimate act?
Other methods of protection
? Confidentiality <> immunity from disclosure in legal proceedings o Confidentiality guaranteed by Art 8, equitable, professional, statutory privacy duties, express/implied contractual provisions
? But don't provide immunity from disclosure in court proceedings --- only against the world generally o But Art 8 not absolute, so difficult to explain why confidentiality alone should account for confining privilege to lawyers o Lawyer remains bound by confidentiality even if no immunity
? Restrictions on collateral use of disclosure o Cannot use for collateral purpose, disclose to 3rd party (unless referred to in public hearing)
? Possibility that ignorance of the law should be an excuse o Different remedy as in France o Better fits justification
? Wide availability of law --- online guides --- modernisation o BUT not specific advice Positive law Establishing Privilege Litigation <> Advice privilege
? Only LP gives protection to communications b/w client/lawyer & 3Ps o IE expert witness reports / witness statements Litigation privilege Dominant purpose...
? "Dominant purpose" test ---

?o introduces nuance but practically unworkable? Would require XXN on every document o Waugh v British Railways (1980) (report on cause of railway accident
? dominant purpose = safety measures not litigation --- no LPP) o Guinness v Fitzroy (1987) (mandatory report by architect to insurance company on possible claim ? dominant purpose was to anticipate litigation)
? BUT obliged to report by contractual obligation --- LPP not needed?
"sole purpose test" doesn't prejudice anyone - because could simply produce separate communications - ie investigation into what happened, and separate email seeking advice o Or if there is another sufficient purpose --- privilege shouldn't apply But in all jurisdictions, now dominant purpose test or lesser test (necessary exchange)

... of actual or anticipated litigation
? Proceedings must be adversarial in nature - determine rights & obligations of parties o Includes arbitrations o Excludes Inquiries - eg some family law proceedings; Three Rivers (No 5) (Bingham Inquiry)
? Proceedings must be pending or reasonably anticipated at time document created o Must be objectively anticipated o favours paranoid/sharp parties? IE litigant who obtains report in order to rectify practices & do the right thing loses out on privilege o West London Pipeline and Storage Ltd v Total Uk Ltd [2008] EWHC 1729 (investigation commenced on the same day the fire was burning - Cs alleged that the investigation can't have been for the purpose of litigation ? privilege claim not upheld - not enough evidence to uphold)
? Does not cover o Underlying facts o Facts known to lawyer that are not discovered through privileged communication Advice privilege
? Test for privilege o Dominant purpose of giving legal advice o OR Necessary exchange of information for purpose of giving legal advice
? Scope of 'advice' o Not just about the law - can be 'wise counsel' advice
? Person providing advice must be qualified lawyers o Or client believes they are o Not protected
? In-house communications not protected

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