#10343 - Privilege - BPC Civil Litigation

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

   • 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 penalty

       • must 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 regardless

       • corporations: 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

   • exceptions (compatible with Art 6)

1. if prosecutor says will not prosecute (usually if already prosecuted), lose right as no realistic risk of prosecution (AT&T v Tully)

2. material existing independently of a search order and coming to light in the course of executing a proper order of the court

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

4. civil proceedings for recovery / administration of property for execution of a trust / for account of property / dealings with property under Theft Act

5. certain prosecutions under Fraud Act (generally breach of fiduciary duty)

6. s98 of Children Act - proceedings re: case, protection and supervision of children

7. certain proceedings under Banking Act 1987

2. LEGAL PROFESSIONAL PRIVILEGE

   • legal advice privilege

     • protects:

       • lawyerclient communications…

       • made for giving or receiving legal advice…

       • sought or given in a relevant legal context…

       • for a non-dishonest purpose (objective test)

     • belongs to client

     • solicitor under duty to assert (i.e. must refuse to disclose) unless client waives

     • survives death of client + vests in PR

     • does NOT apply to

1. documents pre-existing the litigation

2. internal records e.g. accounts

3. investment advice, patent advice, estate agent advice, advice (even from solicitor)

4. between 2 clients of same solicitor on same subject matter

   • litigation privilege

     • protects:

       • lawyer-third-party AND clientthird-party confidential communications…

       • where the dominant purpose in creating the document…

       • is to use it in order to obtain legal advice OR help in conduct of litigation…

       • which was reasonably prospective AT THAT TIME

     • lawyerthird-party

       • protects letters to + statements / reports from witnesses / experts

     • clientthird-party

       • legal advice aspect must be dominant purpose with a 'clear paramountcy' of the person commissioning the report (objective test)

       • document must have come into existence for purpose of present litigation

   • other confidential relationships

1. in-house lawyers

2. communications with barristers, and others authorised to provide certain legal services

3. any third party receiving information in confidence with a view to mediation between parties without parties' agreement

   • exceptions

1. cases involving child welfare (court can override)

2. if purpose behind seeking legal advice is 'iniquitous' regardless of whether solicitor aware of client's intent e.g. fraud, criminal offence

3. doctors, priests, others entrusted with confidences

   • waiver

     • waived by client

     • waived by court

     • lost by inadvertent disclosure

       • party may ONLY use document / its contents with permission of court (r31.20)

       • NOT by simply referring to a document in a witness statement

       • exceptions (court will grant injunction if document not yet used in litigation):

1. inspection of relevant document procured by fraud

2. party/solicitor realises document disclosed as result of obvious mistake

3. WITHOUT PREJUDICE COMMUNICATIONS

   • effect: WP communications inadmissible in connected present and subsequent proceedings between same parties and between party and 3rd party

   • applies

     • to party-party communications made in an attempt to settle a dispute, regardless of whether settlement reached

     • after issue of proceedings

     • before issue of proceedings, provided both parties might reasonably have contemplated litigation if can't settle

     • only to parties themselves

   • words "without prejudice"

     • need NOT be used

     • if they are, NOT conclusive that the rule applies

   • waiver by consent

     • all parties must agree

     • does NOT apply to 3rd parties (mediator, expert etc.), so if parties waive, 3rd party CAN'T rely on WP

   • exceptions

     • communications can be disclosed in interests of justice:

       1. to prove terms of settlement

       2. to show true meaning of settlement (factual matrix)

       3. if the rule is being abused (high threshold of 'unambiguous impropriety')

       4. open offers

       5. admissions

WAIVER OF PRIVILEGE

• for express waiver, need clear reference to document + reliance for a particular point

• using materials in an interim application waives privilege for trial

• using part of document in counsel's opening waives privilege for whole document (unless clearly separable)

• waiver extends to associated documents which are part of the same transaction (court defines subject matter restrictively)

• client who initiates legal proceedings against his solicitor impliedly waives privilege over all documents required to adjudicate dispute fully + fairly

4. PUBLIC INTEREST IMMUNITY

   • documents withheld from production on ground disclosure would damage public interest:

1. as part of a class of documents e.g. Cabinet minutes; or

2. due to sensitivity...