#16950 - Legal Professional Privilege - Principles of Civil Procedure

Requirements for litigation privilege: communications between parties or solicitors and third parties for purpose of obtaining information or advice in connection with existing or contemplated litigation are privileged when the following conditions are satisfied:

• (a) litigation in progress or contemplation; (b) communications made for sole or dominant purpose of conducting litigation; AND (c) litigation adversarial, not investigative

Requirements for legal advice privilege (citing Balabel v Air India): purpose and scope of privilege is to enable legal advice to be sought and given in confidence — thus, test is whether communication or document was made confidentially for purposes of legal advice — purposes construed broadly

• Communications with third parties not protected (even when made in connection with obtaining legal advice) except where third party is client’s agent

• Applies to documents prepared by client, if dominant purpose was receiving legal advice (ie. brought into existence of that purpose), even if never communicated to lawyer.

• Applies to documents even if they contain other kinds of opinion/record matters not strictly legal, provided lawyer engaged in what is normally considered to be the provision of legal services — Balabel v Air India: privilege attaches “to what should prudently and sensibly be done in the relevant legal context”

Legal privilege confers absolute immunity from disclosure, even where information sought is relevant to an issue before a court — rule of compellability, not admissibility

• In relation to admissibility: Possible remedy in equity but discretionary (equitable injunction restraining use of documents)

Rationale for Protection: Scope of protected communications defined by reference to purpose of communications [see box above]

• (A) Legal Advice privilege founded on rule of law considerations:

  • Law accords rights and imposes obligations, which are enjoyed only if persons aware of and understand them — system of rights/obligations requires knowledge

    • Since advice of lawyers is principal mean by which to gain necessary knowledge, access to legal advice must be encouraged and protected

      • Essential condition of meaningful access: client must be able to put all facts before lawyer without fear of disclosure (used to prejudice) (R v Derby)

        • LPP underpins a vital element of rule of law — “fundamental condition on which administration of justice as a whole rests”

• (B) Litigation privilege required by the right to a fair trial

  • Recognises special needs that litigation creates —beyond immediate client-lawyer communications and applies to communications with non-parties

  • Basic requirement of fairness in adversarial process that litigants able to prepare case confident that others will not be allowed to invade sphere of preparation closely bounded up with right to a fair trial, including: access to court; equality of arms; and adequate facilities for preparation of defence

• Note: Common basis for LAP/LP: founded on empirical assumption: without protection, clients not able to effectively communicate with lawyers/adequately prepare litigation

  • Core rationale: entitlement to private/secure sphere TO conduct communications for purpose of obtaining legal advice or preparing litigation Without this:

    • (a) citizens will lack meaningful means of ascertaining what the law is and what their rights and obligations are

    • (b) parties to legal proceedings will be denied adequate opportunity to prepare for litigation

ZUCKERMAN ARGUMENT: Privilege should be rule of immunity and inadmissibility

• (1) As presently understood, LPP provides insufficient protection — primarily a rule of immunity from compulsory disclosure — two key implications:

  • (a) Client may waive immunity and disclose privilege communications

  • (b) Privilege communications otherwise admissible (ie if communications accidentally/otherwise come to light other than by compulsory legal process)

• (2) HOWEVER: Underlying rationale supports inadmissibility (ie communication should not be used to client’s detriment)

  • Morgan Grenfell: concern about inhibited communication not that it may be disclosed but that it may then be used to client’s detriment

  • If law protects information from disclosure, unfair to allow client’s statements made under such conditions to be used as evidence against client

• (3) Accepting inadmissibility aspect of LPP would resolve various difficulties including:

  • (i) Accidental disclosure — individual not at mercy of court’s discretion (whether or not opponent would be allowed to use it)

  • (ii) Waiver — party who has shown a privileged document for a specific purpose will not have to fear that by doing so he has forgone privilege completely

• (4) Inadequacies of “middle-ground” approach — apply injunction requiring return and restraining use of documents (Ashburton v Pape)

  • HOWEVER: Depends on whether owner of privilege was sufficiently aware and in possession of necessary means to seek injunction

  • To avoid need for injunction application, CPR 31.20: need for court permission when party seeks to rely on privileged document disclosed inadvertently

    • HOWEVER: only applies where inadvertently allowed inspection in course of disclosure; and says nothing about how court should decide

    • Solution: Scott VC in Webster v James Chapman:

      • No absolute right to injunction — court discretionary jurisdiction to restrain breach of confidence

      • Court to balance legitimate interests of both parties, considering: circumstances in which information came to defendant, issues in action, significance of document, privileged nature

      • Zuckerman: sound basis for approaching problem if accepted that Court’s discretion is not open-ended (ie. categories of documents that court should never permit to be used as evidence against client)

        • eg: privileged communications should never be admissible against client as admission or evidence of truth of matters told to the lawyer

Relationships to which privilege applies: Noting that aim to create secure sphere in which legal advice may be obtained without inhibition, privilege must follow legal advice

• Zuckerman: should protect all communication for purpose of obtaining legal advice, regardless of whether person giving advice is a lawyer

  • Recognised in Prudential: Lord Neuberger: “as a matter of pure logic” no reason that privilege should be restricted to legal advisers as opposed to other professionals with a qualification or experience to give expert legal advice in a particular field

• Consider move from status-driven to purpose/function-driven approach:

  • To what extent does the value of the advice affect our belief/views about the privilege (ie. tied to competency/independence of the advice given)?

  • Impact and indication of the Legal Services Act 2007 (multi-disciplinary partnerships — extends privilege if lawyer overseeing.

Application to CORPORATE clients

• Important: Debate regarding justification for according corporations any LPP settled in England in favour of corporate privilege

  • HOWEVER: Serious questions about extent to which corporations can claim privilege for internal communications made for the purpose of obtaining legal advice operation of privilege in the corporate arena deeply problematic.

• Three Rivers (No 5) (rejection of privilege over communications prepared by ordinary employees): not all employees necessarily part of corporate client

  • Criticised for creating artificial delineation between employees who are “client” and those who are not — since company can learn facts concerning affairs/communicate with lawyers only through employees, all communications within that process should be privileged

    • Attraction of simplicity and certainty HOWEVER: Creates potential for pulling “blanket of privilege” over ever-increasing range of documents

      • If any internal documentation produced for dominant purpose of being presented to lawyers for legal advice privileged, companies able to create a “paper trail” leading to corporate lawyer’s door — would shield much of internal activities bring administration of justice into disrepute

• To find solution, must consider rationale of LAP — within rationale, always asking two questions:

  • (1) Normative: emphasising relationship between individual and State — does the need for fair balance apply equally between individual and corporation?

    • Caltex case: “reject without hesitation” claim that need for fair balance applies equally between individual-State and corporation-State

  • (2) Empirical: [In circumstances where the normative rationale does not apply, the case of privilege must be empirically based]

  • Fundamental rationale: facilitate access law so that citizens may be guided—empirical assumption: absent privilege, clients deterred from making full disclosure

    • (i) incentive to “control group” (ie. those authorised to seek/obtain legal advice on behalf of company) to order investigations (ie order employees to talk)

    • (ii) encourages employees to be candid in communications (to disclose)

    • HOWEVER: Assumption “far from self-evidently sound when it comes to corporations”:

      • (a) Corporate activities involve larger amounts of money, greater potential...