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7.2 Disclosure and Inspection - Coggle Diagram
7.2 Disclosure and Inspection
Types of privilege
There's many types, but the important ones are:
(a) Legal advice privilege
(b) Litigation privilege
(c) Without prejudice communications
(a) Legal advice privilege:
Definition:
'A document which is a confidential communication between a lawyer and a client and was prepared for the dominant purpose of giving/receiving legal advice
Confidential
'A document which is a
confidential
communication between a lawyer and a client and was prepared for the dominant purpose of giving/receiving legal advice'
The principle is that the client should be able to get legal advice in confidence. If the document is not confidential, privilege won't apply
Communication between lawyer and client
'A document which is a confidential
communication between a lawyer and a client
and was prepared for the dominant purpose of giving/receiving legal advice'
A solicitor's note of a conversation with his client concerning legal advice will be confidential communication between lawyer and client and therefore subject to legal advice privilege
A solicitor's attendance note of a conversation between parties (i.e. normally the solicitors for each party) or of what happens at court is NOT privileges (even if court held the note is a communication) because there is NO CONFIDENTIALITY in notes of matters at which both sides are present
Means that solicitors memoranda and notes are communications for the purposes of the test but they will only be privileged if prepared in relation to confidential work undertaken for their purposes of legal advice
This privilege does not currently apply to advice of a legal or quasi-legal nature given by non-lawyers
Prepared for the dominant purpose of giving or receiving legal advice
'A document which is a confidential communication between a lawyer and a client and was
prepared for the dominant purpose of giving/receiving legal advice'
Where a solicitor is retained primarily to provide legal advice, wider communications between solicitor and client, even if ancillary to that purpose, will be privileged because they fall within the "continuum of communication"
Three Rivers District Council and others v Governor and Company of the Bank of England (No.10)
[2004]:
HoL held that:
the 'presentational advice' in question (ie advice including the most appropriate way to present information to the BIU) was covered by legal advice privilege. The fact that lawyers had been giving such advice through 'legal spectacles' was the key consideration. The advice did, therefore, fall within legal advice privilege - it related to what should prudently and sensibly be done in the legal context of the case.
Bank of Nova Scotia v Hellenic Mutual War Risks Association (the Good Luck)
[1992]:
Provides that if a client repeats internally legal advice provided by his lawyer, for example to other personnel within his company, then that repetition also has the benefit of privilege.
However, whether what a client passes on is a repetition of his lawyer's legal advice (which is covered by privilege) or his own opinion (which is not covered by privilege) is often debateable.
It is therefore important to advise clients to be very careful about how legal advice gets disseminated to the board of a company for fear of losing legal advice privilege in relation to the advice
Communications with in-house lawyers can also enjoy legal advice privilege before the English courts in civil actions, as long as the communication concerns advice given in a legal capacity rather than a general commercial or executive capacity with no legal context. However, privilege is unlikely to attach to communications with individuals who are qualified lawyers but who are not employed in a legal role, even if they are in fact
giving legal advice.
(b) Litigation privilege:
Definition:
A document which is a confidential communication which passed between the lawyer and his client or between 1 of them and a 3rd party, where the dominant purpose in creating the document is to obtain legal advice, evidence or information for use in the conduct of litigation which was at the time reasonably in prospect
Confidential communication | lawyer and his client
A document which is a
confidential communication
which passed between the
lawyer and his client
or between 1 of them and a 3rd party, where the dominant purpose in creating the document is to obtain legal advice, evidence or information for use in the conduct of litigation which was at the time reasonably in prospect
Confidential
Confidentiality is also an essential element of litigation privilege - already mentioned in legal advice privilege
Communication between lawyer and client
Self-explanatory, but privilege also extend to documents brought into existence to prosecute/defend a claim.
e.g. memoranda from 1 lawyer in a firm to 1 of his colleagues relating to a litigation case
Or between 1 of them and a 3rd party
A document which is a confidential communication which passed between the lawyer and his client
or between 1 of them and a 3rd party,
where the dominant purpose in creating the document is to obtain legal advice, evidence or information for use in the conduct of litigation which was at the time reasonably in prospect
Communication between lawyer and a 3rd party
e.g. this could be a communication between a solicitor and a witness (who is not a client) OR
Communication between client and 3rd party
e.g. between client and witness
Dominant purpose in creating the document is to obtain legal advice, evidence, or information for use in the conduct of litigation
A document which is a confidential communication which passed between the lawyer and his client or between 1 of them and a 3rd party, where the
dominant purpose in creating the document is to obtain legal advice, evidence or information for use in the conduct of litigation
which was at the time reasonably in prospect
Dominant purpose:
If there's more than 1 purpose behind the preparation of a document, the court will look at the dominant purpose
Test:
One of dominance and not exclusivity
Establishing that dominant purpose of a document may be particularly difficult where documents have been produced for a dual purpose
Waugh v British Railways Board
('BRB') [1980]:
Example: Following an accident on a railway, the railway faces a claim by an injured person. The railway produces a report for the dual purposes of improving safety on the railway and being submitted to the railway's solicitors for legal advice. As the litigation was at best a purpose, not a dominant purpose, the report was not privileged (from
All the time reasonably in prospect
A document which is a confidential communication which passed between the lawyer and his client or between one of them and a third party, where the dominant purpose in creating the document is to obtain legal advice, evidence or information for use in the
conduct of litigation which was
at the time reasonably in prospect
Litigation reasonably in prospect
Litigation for which the documents are to be used must be 'reasonably in prospect'. This means litigation must be a
real likelihood rather than a mere possibility. A general apprehension of future litigation is insufficient
USA v Phillip Morris
[2003]
Example: documents produced by a company, not for specific litigation, but because it felt it was constantly under the threat of litigation by customers, were not privileged (from
(c) Without prejudice communications
Definition:
A document whose purpose is a genuine attempt to settle a dispute
Substance not form
Document
NEED NOT
be marked 'without prejudice' for the privilege to apply.
A document marked 'without prejudice' may not be a genuine attempt to settle and would therefore fall to be inspected. Court will accordingly look to substance rather than form
Without prejudice documents won't generally be seen by the court unless the privilege is expressly waived
Some documents are however, still marked as being 'without prejudice saved as to costs'. This means that the court won't see the documents contents unless its considering the costs of the action or a particular issue
If it is considering costs, the judge is generally entitled to see the document and can take its contents into account when deciding e.g. the parties' conduct and which party is liable for costs/the amount of costs payable
Introduction
A party has a right to inspect a document that has been disclosed except where (CPR 31.3(1)):
(a) The document is no longer in the disclosing party's control (CPR 31.3(1)(a);
(b) Allowing inspection would be disproportionate (CPR 31.3(2)); or
(c) The disclosing party has a right or duty to withhold inspection, i.e. it is privileged (CPR 31.3(1)(b))
Inspection
A party has a right to inspect a document that has been disclosed except:
(a) The document is no longer in the disclosing party's control (CPR 31.3(1)(a));
(b) Allowing inspection would be disproportionate (CPR 31.3(2)); or
(c) The disclosing party has a right or duty to withhold inspection, i.e. it is privileged (CPR 31.3(1)(b)
A party has a right to inspect a disclosed document except where:
No longer in control; OR
Disproportionate; OR
Right/duty to withhold inspection (e,g, privilege)
No longer in control
This is common sense. Party A cannot let Party B look at a document which is not in its control
Disproportionate
If a party disclosing documents think that its disproportionate to permit inspection of a certain category/class of documents to be disclosed then it is required to permit inspection BUT:
You must state disclosure statement (usually contained in the party's list of documents) that is not permitted and that allowing inspection would be disproportionate (CPR 31.3(2))
This is rare: once a document has been found and disclosed, its unlikely that the process of letting the other party see it / providing a copy would be disproportionate
Issues of proportionality are more likely to arise at the earlier stages of deciding what disclosure order to make and the scope of the search for documents
Inspections cannot be refused on this ground where the reason for disclosure is that a party wishes to rely on the document, or that a practice direction requires disclosure
Right / duty to withhold inspection (e.g. privilege)
A document need not be produced IF there is a right or duty to withhold inspection, a concept known as privilege
If a document falls within the scope of the order for disclosure made by court and it is privileged, its existence must
must be disclosed
and cannot be withheld from inspection
Privileged documents are still described generically in a party's list of documents and are not listed individually
There's many types of privilege, but the most important ones are:
(a) Legal advice privilege
(b) Litigation privilege
(c) Without prejudice communications
Redaction:
Blanking out parts of a document (digitally or traditionally by overing them with paper before copying/covering with black pen/making sure to preserve original unmarked)
Although CPR doesn't make a provision for redaction, its accepted that redaction is possible in certain circumstances
Clients sometimes wish to redact parts of documents that are going to be inspected (documents that are not privileged) because they contain information that are confidential/commercially sensitive
This is not generally permitted - confidentiality/commercial sensitive alone does not justify redaction
There's 2 main circumstances which may be possible to redact parts of a document
(1) If there's a clear part of a document which has attractive privilege, but remainder does not
Privileged part can be should be redacted to avoid waiving privilege
Example:
An accountant receives a letter of complaint from a customer. He telephones his solicitor to take advice in relation to the complaint, and makes a note of the advice on the letter from the customer. As explained in the element addressing types of privilege, the letter as a whole is not privileged and inspection of it would be permitted, but the note of advice from the solicitor would be privileged. That note should be redacted at the
time of inspection.
(2) If information is totally irrelevant to the dispute
Then it can be redacted. So information which is confidential/commercially sensitive
and
irrelevant is generally redacted
When it comes to listing redacted documents in a disclosure list, redacted version of the document will be listed in the 1st part of the list of documents and will be made available for inspection with appropriate parts covered over
Un-redacted version will be listed generically in the 2nd part of the list of documents - inspection refused
Waiver:
When a party deliberately allow inspection of a privileged document if it considers that the document helps its case. But a party does not have an unrestricted right to determine precisely what it wishes to waive privilege over
(1) Waiver of privilege in part of a wholly-privileged document will lead to waiver of privilege over the remainder of the document, unless it deals with an entirely different subject matter
A party cannot 'cherry-pick' certain parts of a privileged document to reveal the other side/court (
Great Atlantic Insurance v Home Insurance
[1981])
(2) Waiver of privilege in 1 document can lead to privilege being lost in other documents, if -
it would be unfair to allow the party waiving privilege being not put those documents before the court/opponent too
e.g. if they all deal with the same subject matter and only permitting inspection of the 1st document could lead to the facts being misunderstood
Example:
waiver of the privilege attaching to a solicitor's letter of advice may also result in privilege being lost in respect of letters from the
same solicitor dealing with the same issue.
Further principles relating to privilege:
Once privileged, always privileged
If something is privileged in relation to 1 set of proceedings, it will remain privileged in relation to all proceedings (
The Aegis
[1986]) unless somethings takes place to cause the privilege to be last, like a waiver
Burden of proof
Where there is dispute over whether a document is subject to privilege, the burden of proof is on the party claiming privilege to establish it
Documents referred to in SOC and other specified documents:
As well inspecting documents disclosed pursuant to a court order, a party can inspect a document referred to in a
SOC, witness statement, witness summary, an affidavit
and (subject to certain restrictions),
expert report
(CPR 31.14). This may take place even before the disclosure stage of proceedings
Case law suggests that this right to inspect is subject to the usual rules on privilege.
So privilege in a document is not lost simply by reference to a document in a SOC or witness statement, and court has general discretion to refuse inspection
But reference to a document in a SOC/witness statement can amount to a waiver of privilege depending on circumstance, so parties must be very careful