20: Privilege

Question 1

What are the principles of privileged relationships?

Answer 1

1. Person entitled to claim privilege may refuse to answer question. Judge shouldn’t balance claim to privilege against importance of evidence;
2. If D entitled to claim privilege fails or waives it, no other person may object. If judge improperly rejects claim to privilege made by witness not party to proceedings = no appeal will lie as no infringement of rights of parties.
3. No adverse inferences may be drawn against W or party if claiming privilege
4. Claim to privilege cannot succeed simply on basis it would succeed in other jurisdiction.

Question 2

Is there privilege against Self-incrimination?

Answer 2

D may not be asked a question which would incriminate himself. No witness is bound to answer questions in court if to do so would expose him to a criminal charge, penalty or forfeiture + judge regards as reasonably likely.

Courts may substitute difference protection in place of privilege, provided adequate protection available + pros agree not to make use of such info.

Question 3

Privilege against self-incrim = restricted to

Answer 3

person claiming it, NOT extended to questions which would incriminate a spouse. Spouse cannot claim privilege against the incrimination of husband. No privilege against incriminating strangers.

Question 4

LEGAL PRIVILEGE

Client may, and legal adviser MUST (subject client’s waiver), refuse to give oral evidence/produce docs relating to 2 types confidential communication:

Answer 4

1. Communication between client + legal adviser made for purpose of enabling client to obtain legal advice whether or not litigation contemplated at time = Legal advice privilege; and
2. Communication between client + legal advisor + third party, sole/dominant purpose to enable legal adviser to advice/act in relation to litigation pending or contemplated = Litigation privilege

Evidential burden of establishing doc/communication is privileged lies on party claiming privilege

Question 5

Who is the question of privilege for?

Answer 5

For the court

Court MUST consider evidence, specific enough to show purposes they were created. If not satisfied claim to privilege, as last resort = court MAY inspect docs, but should not unless credible evidence by those claiming privilege have misunderstood their duty/no practical alternative etc.

Question 6

Legal advice privilege = Covers

Answer 6

communications between clients + legal advisers for purpose of obtaining or giving legal advise, even if this fact is not communicated. No requirement purpose of obtaining/giving legal advice = dominant purpose. Communications MUST have been made in course of relationship or with view of its establishment. Privilege extends to instructions given. But documents prepared/emanating from independent third parties + passed to lawyers for purposes of advice = not privileged.

Question 7

Litigation privilege =

Answer 7

1. Privilege engaged when litigation is in reasonable contemplation.
2. Once engaged, covers communications between parties/solicitors + third parties for purpose of obtaining info. Advice in connection with litigation, provided it is for the sole or dominant purpose of the conduct of litigation
3. Conducting litigation includes deciding whether to litigate + settling
4. Documents which cannot be disentangled from privileged docs are covered by privilege

Privilege only applies in case of adversarial litigation, NOT investigatory or inquisitorial. Privilege extends to identity of witnesses intended to be called in adversarial litigation.

Question 8

Types of documents covered by litigation privilege?:

Answer 8

Copy or translation of unprivileged document in control of a party doesn’t become privileged merely because copy or translation was made for purpose of the litigation.

Question 9

Litigation privilege =

Communications in furtherance of crime or fraud =

Answer 9

exception to principle of legal professional privilege. If client applies to legal adviser for advice intended to facilitate/guide in crime or fraud, legal advisor being ignorant of the purpose, the communication between the 2 is NOT privileged.

Question 10

Litigation privilege =

Waiver of privilege =

Answer 10

Legal professional privilege where D refuses to answer police questions on advice of solicitor. If D says he didn’t answer Q on advice of solicitor, that advice = NOT waiver of privilege. But if D wishes to invite court NOT to draw adverse inference under s34 CJPO, it must state the reason for the advice. This MIGHT be a waiver of privilege. D can attempt to rebut inference that D fabricated facts, by showing relevant facts communicated to third party, usually solicitor @ time of interview. This doesn’t involve waiver of privilege if solicitor to whom the fact is communicated. Judge should warn counsel that privilege may be taken to be waived if D give evidence of nature of advice.

Question 11

Litigation privilege =

What is the waiver?

Answer 11

if D reveal basis/reason for solicitor’s advice not to answer police questions = WAIVER OF PRIVILEGE. Distinction between having to reveal what was alleged to solicitor to rebut allegation of recent fabrication and volunteering information about legal advice. Former = NOT BEEN WAIVED.