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Privilege Notes

BPTC Law Notes > BPTC Civil Ligitation Notes

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A more recent version of these Privilege notes – written by City Law School students – is available here.

The following is a more accessble plain text extract of the PDF sample above, taken from our BPTC Civil Ligitation Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

PRIVILEGE Privileged material and disclosure

? must be disclosed, but need NOT be made available for inspection
? ID in section 2 of list of documents: documents party claims a right / duty to withhold inspection (r31.10(4)(a))

Effect of claiming privilege

? can't draw adverse inferences from fact witness / party claims privilege
? successful claim prevents certain people being compelled to give evidence of particular matters but NOT from those matters being proved by other available evidence

(1) PRIVILEGE AGAINST SELF INCRIMINATION o the rule (s14 Civil Evidence Act)no one is bound to answer any Q or produce any document or thing if would have a tendency to expose him or his spouse to proceedings for a criminal offence (except contempt of court) or recovery of a penaltymust be a real and appreciable risk of a criminal charge (Rank Film Distributors v Video Information Centre)arises if prosecution might use answer in deciding whether to prosecute (Den Norske Bank v Antonatos) ? inapplicable if evidence so strong prosecution would proceed regardlesscorporations: have legal personality, so can claim (Triplex v Lancegaye) BUT may need to consider whether corporation and / or employees at risk of criminal proceedings (Sociedade de Angola v Lunqvist)personal so if person answers Q about spouse, spouse cannot complain

o exceptions (compatible with Art 6) (a) if prosecutor says will not prosecute (usually if already prosecuted), lose right as no realistic risk of prosecution (AT&T v Tully)

(b) material existing independently of a search order and coming to light in the course of executing a proper order of the court

(c) IP or passing off cases (+ answers shall not be used in any related prosecution) (s72 SCA)

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