#3660 - Litigation Privilege - Civil Procedure

ESSAY PLAN 10 – litigation privilege

Rationale for litigation privilege

Legal professional privilege = 2 things:

1) advice privilege (covers communications between lawyer and client for the purposes of obtaining legal advice- privileged whether or not litigation is contemplated) and

2) litigation privilege (applies to communications between a client or his lawyers and third parties which come into existence after litigation is contemplated or commenced, with the sole or dominant purpose of obtaining advice, information, or evidence for the purposes of the litigation

Litigation privilege shield’s a party’s attempt to prepare a case for litigation conducted inter partes. Parties cannot then discover or target fruit of the other party’s forensic investigation. No duty to reveal bad points discovered during the process.

Litigation privilege will therefore protect communications between a client, non-lawyer or other professional expert, but the communications will only be protected if the dominant purpose is to obtain advice, info or evidence for actual or contemplated litigation.

Axa Seguros – Clarke J: covers: (i) confidential communication including the creation of documentary material between third parties and either the client or lawyer; (ii) the communication must have occurred, or this material must have been created for the dominate purpose of using it in pending or anticipated; if not already commenced the relevant proceedings must be in reasonable prospect; (iii) the proceedings for which the communication was intended can be criminal or civil, foreign or domestic and involve courts, tribunals or arbitration; (iv) the proceedings must be adversarial in nature as distinct for an inquisitorial procedure (Re L) – thus anything relating to an inquiry can only be protected under legal advice privilege (only between client and lawyer!) = this bar upon litigation privilege in inquisitorial proceedings need to be re-examined.

R(Morgan Grenfell) – Lord Hoffmann summarised the principles which have decided that legal professional privilege is a fundamental human right guaranteed by Art 8 ECHR. Existed as a common law right since the 16^th Century.

Ex p B – Lord Taylor: legal professional privilege is “much more than an ordinary rule of evidence... It is a fundamental condition on which the administration of justice as a whole rests.”

USA v Phillip Morris (no 1) – Brooke LJ: a real prospect, rather than a mere possibility.

ISTIL Group – an unsolicited communication with a potential witness would be privileged even if the witness has not indicated that he intends to respect confidence.

Anderson – James LJ: “as you have no right to see your adversary’s brief, you have no right to see that which comes into existence merely as materials for the brief”.

Main arguments in favour of litigation privilege:

(1) adversarial preparation in a protect zone: each litigant in preparation for case should be free to communicate confidentially with third parties without fear that the opponent will invade, feed off, or take advantage of such exploratory communication see Brown LJ in Hitchins

(2) third parties’ candour to be promoted: potential witnesses and experts, no less than clients, should feel secure that they can state their recollection of the relevant events or venture their opinion, “fully and candidly”.

(3) Thanki (2006) – the prospect of nit-picking cross-examination concerning the drafting of witness statements

Re Strachan – Lindley LJ: “undue advantages for cross examination and lead to endless side issues”.

(4) Pattenden (2000) - litigation privilege concerned with efficacy of adversarial process; hindered.

(5) Andrews – financial free-rider issues. Pattenden (2000) examines this: in the absence of a zone of privacy, the lawyer might be tempted to make less effort in the pursuit of the client’s interests not only because the results of his preparatory work stand to be plundered by his adversary but also because he may himself home to build a case from the preparatory work of the other side.”

Benbow – Jessel MR: “If you give one side the opportunity of knowing the particulars of the evidence that is to be brought against him, then you give a rogue an enormous advantage. He then may be able, although he has no evidence in support of his own case, to shape his case and his evidence altogether in such a way as to defeat entirely the ends of justice”.

Brooks (1976): Initiative is rightly rewarded; laziness or ignorance penalised”

(6) preparation of the case is inextricably linked with the advice to the client on whether to fight or to settle and if so on what terms

(7) Bray (1885) – concern that disclosure might show what was the view of the professional legal adviser as to his client’s case or the advice which he had given him.

= attributed to adversary system ore than necessary to guard against perjury and interference with witnesses etc.

Three Rivers (no 6) – Lord Roger – “litigation privilege is based on the idea that legal proceedings take the form of a contest in which each of the opposing parties assembles his own body of evidence and uses it to try to defeat the other... in such a system each party should be free to prepare his case as fully as possible without the risk that his opponent will be able...