The Law of Privilege

by Thanki, Bankim; Goodall, Patrick; King, Henry; Phelps, Rosalind; Cutress, James; Yeo, Nik; Carpenter, Chloe; Oppenheimer, Tamara

• ISBN13: 9780199287765
• ISBN10: 0199287767
• Format: Hardcover
• Copyright: 2006-07-13
• Publisher: Oxford University Press

Summary

This significant new title provides a comprehensive guide to legal professional privilege as it applies to litigation and non-litigation situations. The book contains authoritative guidance to the law as it stands today, following the landmark decisions of the Court of Appeal and House of Lords in the Three Rivers litigation, and the impact of the Human Rights Act 1998.

Table of Contents

Preface	xv
List of Abbreviations	xix
Table of Cases	xxi
Table of Legislation	xxxvii
Table of Legislation from Other Jurisdictions	xliii
1. Legal Professional Privilege: Fundamental Principles
A. Introduction
B. Classification
C. Historical Origins of the Two Sub-heads of Privilege
D. Rationale
(1) Legal advice privilege
(2) Litigation privilege
E. The Basic Features of Legal Professional Privilege
F. The Client's Privilege
G. Adverse Inferences
H. Who Are Lawyers for the Purposes of the Privilege?
I. How Long Does the Privilege Last?
J. EC Law
K. The Impact of the Convention
2. Legal Advice Privilege
A. Introduction
B. Outline of the Relevant Three Rivers Decisions
C. Who is the Client?
(1) The implications of Three Rivers 5
(2) Why the approach of Three Rivers 5 is too restrictive
D. Who is a Lawyer?
E. Acting in Person
F. Communications
(1) Extent of the need for actual communications after Three Rivers	5
(2) Communications through intermediaries
(3) The requirement of confidentiality
G. What Constitutes Legal Advice or Assistance?
(1) The law prior to Three Rivers 6
(2) The broad test following Three Rivers 6
(3) The need for a separate consideration of 'legal' and 'advice or assistance'
(4) No requirement of a connection with litigation
(5) Practical examples and difficult areas
H. Whether the Privilege Should be Confined to Lawyer—Client Communications: The Current Status of Three Rivers 5
I. Is There a Dominant Purpose Test?
3. Litigation Privilege
A. Introduction
B. What Type of Material is Covered?
(1) Communications
(2) Matters other than communications
(3) Confidentiality
C. Nature of the Litigation
(1) Actual or anticipated litigation
(2) What is meant by 'litigation'?
D. Dominant Purpose Test
(1) What purpose?
(2) Dominant purpose
(3) Whose purpose?
E. Who Can Assert Litigation Privilege and When?
F. Communications with Particular Persons
(1) Experts
(2) Clinical case managers
(3) Lawyers and others in relation to litigation costs
G. The Future of Litigation Privilege
4. Legal Professional Privilege: General Issues A. Introduction
B. Problem Areas—Particular Types of Document
(1) Partly privileged documents
(2) Pre-existing documents, copies and selections
(3) Subsequent litigation
(4) Dissemination of privileged material
C. Exceptions to Privilege
(1) The crime/fraud exception
(2) Where the communication is a material fact in itself
(3) Better right of another party
(4) Where secondary evidence may be given
(5) Particular relationships
(6) Statutory exceptions
D. International Aspects of the Law of Privilege
(1) Introduction
(2) Choice of law
(3) International aspects of the English substantive law of privilege
E. Procedural Issues
(1) Effect of privilege
(2) Claiming privilege
(3) Challenging privilege
(4) Inspection by the court
(5) Role of the solicitor
5. Loss of Privilege
A. Introduction
B. Loss of Confidentiality
(1) Requirement of confidentiality
(2) Lack of confidentiality as between parties to litigation
(3) Disclosure to third parties and loss of confidentiality
C. Waiver
(1) Classification of waiver
(2) Disclosure in earlier proceedings or investigations
(3) Waiver during proceedings
(4) Other instances of implied/ compulsory waiver
D. Restraining the Use of Privileged or Confidential Documents
(1) Introduction
(2) Goddard v Nationwide Building Society and subsequent cases
(3) Where the document is disclosed and inspected
(4) Other factors going to relief and the extent of relief
E. Effect of Waiver
(1) Preliminary issues
(2) Collateral waiver
6. Joint and Common Interest Privilege
A. Joint Privilege
(1) Introduction
(2) Joint retainer
(3) Joint interest
B. Common Interest Privilege
(1) Introduction
(2) A common interest: a common solicitor?
(3) A common interest: widening boundaries
(4) A common interest: nature and ambit of the relationship
(5) The nature of common interest privilege
(6) Waiver of common interest privilege
7. Without Prejudice Privilege
A. Nature of and Rationale for the Privilege
B. Scope of the Privilege
C. Exceptions to the Application of the Privilege
D. Waiver of Privilege
E. Procedure
F. Conciliation Privilege
8. Privilege against Self-Incrimination
A. Introduction
B. How to Assert the Privilege
C. Potential Rationales of the Privilege
D. The Privilege is not Absolute
E. Civil Evidence Act 1968, s 14
F. 'Refuse to Answer any Question or Produce any Document or Thing'
G. 'Would Tend to Expose that Person to Proceedings for an Offence or for the Recovery of a Penalty'
(1) Applicability of the privilege at common law outside legal or quasi-judicial proceedings
(2) Exposure to proceedings under foreign laws
(3) The jurisprudence of the European Court of Human Rights as analysed by English courts
(4) The European Court of Human Rights' analysis in Shannon v United Kingdom
(5) Privilege against self-incrimination for contempt of court or perjury
(6) Use of compelled evidence in directors' disqualification proceedings and disciplinary proceedings
H. Statutory Restriction of the Privilege
I. Waiver of the Privilege
Index