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Legal Professional Privilege 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
 LitigationAdvice 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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