This is an extract of our Legal Professional Privilege document, which we sell as part of our Principles of Civil Procedure Notes collection written by the top tier of Oxford students.
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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
? 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
? 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  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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