#14958 - Legal Professional Privilege - Principles of Civil Procedure

Legal Professional Privilege

Policy & Justifications

Arguments For

Litigation privilege — Fair trial

• Right to fair trial

  • 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

  • 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)

  • 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

  • Therefore extends to comm b/w client/lawyer & 3P (witnesses/experts) — protects proofs of witnesses: Lord Denning in Re Saxton

  • 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

  • Ability to maximise benefits — eg tax aims to guide conduct but cannot if people don’t understand it

  • Ability to avoid penalty — nulla poena sine lege

    • Ignorance of the law no excuse — rules that are unknown or hard to understand

  • Unless confidential advice available, benefits will be monopolised by legally savvy / legally untrained might unwittingly suffer detriment

• Judicial support

  • Lord Hoffmann in Morgan Grenfell (2002) — fundamental common law right

  • 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

  • People following the law

  • Efficiency in settling matters

  • 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—

  • Illegality/unfavourable aspects

  • Human sensibilities – wills, hiding assets from spouse, etc – not legally admissible but client doesn’t know that: Lord Rodger in Three Rivers (No 6)

  • Commercial sensitivities – in corporate context

• Judicial support —

  • 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)

  • 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

  • Client more likely to hold back in context of (actual or contemplated) litigation

  • Different interests — to win <> to get accurate advice — rational client seeking advice would make full disclosure: Longmore LJ in Three Rivers (No 5)

  • 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

  • Litigation privilege — Art 6

  • 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

  • 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

  • EG take-over transaction – directors likely to get advice in any event

  • BUT scope of disclosure in seeking advice may differ

• Can it justifiably be applied to everyone?

  • Eg anarchist seeks advice on terrorist acts?

  • If causal connection between advice & illegitimate act?

Other methods of protection

• Confidentiality <> immunity from disclosure in legal proceedings

  • 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

  • But Art 8 not absolute, so difficult to explain why confidentiality alone should account for confining privilege to lawyers

  • Lawyer remains bound by confidentiality even if no immunity

• Restrictions on collateral use of disclosure

  • Cannot use for collateral purpose, disclose to 3^rd party (unless referred to in public hearing)

• Possibility that ignorance of the law should be an excuse

  • Different remedy as in France

  • Better fits justification

• Wide availability of law — online guides — modernisation

  • BUT not specific advice

Positive law

Establishing Privilege

Litigation <> Advice privilege

• Only LP gives protection to communications b/w client/lawyer & 3Ps

  • IE expert witness reports / witness statements

Litigation privilege

Dominant purpose…

• “Dominant purpose” test —

  • introduces nuance but practically unworkable? Would require XXN on every document

  • Waugh v British Railways (1980) (report on cause of railway accident dominant purpose = safety measures not litigation — no LPP)

  • 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

  • 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

  • Includes arbitrations

  • Excludes Inquiries – eg some family law proceedings; Three Rivers (No 5) (Bingham Inquiry)

• Proceedings must be pending or reasonably anticipated at time document created

  • Must be objectively anticipated

  • favours paranoid/sharp parties? IE litigant who obtains report in order to rectify practices & do the right thing loses out on privilege

  • 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

  • Underlying facts

  • Facts known to lawyer that are not discovered through privileged communication

Advice privilege

• Test for privilege

  • Dominant purpose of giving legal advice

  • OR Necessary exchange of information for purpose of giving legal advice

• Scope of ‘advice’

  • Not just about the law – can be ‘wise counsel’ advice

• Person providing advice must be qualified lawyers

  • Or client believes they are

  • Not protected

    • In-house communications not protected

    • Accountants giving legal advice

• Not all employees of company are necessarily part of a client – controversial decision: Three River v Bank of England (responsibilities of BoE re collapse of bank – investigation by special unit within Bank of England to liaise with bank’s lawyers – special unit sought statements from all employees re supervision of collapsed bank – passed some one to lawyers only the special unit was the client for the purpose of LPP)

• Raw material (underlying factual inquiries) not covered by legal advice privilege

  • Only communications between client & legal advisers – or docs intended to be communications (eg drafts)

  • Policy – weeding out documents that have dual purpose

    • Ie no need to protect such documents in order to protect lawyer-client relationship

    • BUT becomes arbitrary – if underlying statements are annexed to brief, then become privileged

      • Client arguably demonstrates what is necessary to obtain advice by sending to lawyer

Scope of privilege

Practice & procedure

• Burden on the party asserting privilege

• In practice – Courts only look beyond assertion of privilege in rare circumstances – in camera proceedings or XXN of deponent extremely rare

Privilege belongs to the client

• Privilege lasts indefinitely — & survives death of client, benefiting successors in title: R v Molloy

  • <> instrumental justification doesn’t support this — not a proprietary right like copyright

Lawyers only

• Lawyers with a practising certificate

• Includes foreign lawyers

Other professionals —...