20. Privilege

Question 1

what are the 3 types of privilege available?

Answer 1

• privilege against self-incrimination
• legal advice
• litigation privilege

Question 2

general principles of privilege?

Answer 2

• person entitled to claim priv can refuse to answer question or disclose doc
• person can waive privilege
• party who is seeking to prove matter to which someone claims priv can prove by other evidence
• no adverse inference from claiming priv

Question 3

who can claim privilege against self-incrim?

Answer 3

• called witness
• accused

Question 4

can you ask a question to someone that would incriminate?

Answer 4

yes in X-exam but they can refuse to answer

Question 5

what is self-incrimination scope?

Answer 5

no witness is bound to answer questions in court (or to produce documents or things at trial) if to do so would, in the opinion of the judge, have a tendency to expose the witness to any criminal charge, penalty or forfeiture (of property) which the judge regards as reasonably likely to be preferred or sued for

Question 6

when can person not claim privilege of self-incrim?

Answer 6

on basis of exposure to civil liability
or
exposure of criminal liability under foreign law.

Question 7

can you claim privilege from self-incrim of someone else?

Answer 7

no incrimination must be of the person claiming privilege.

Question 8

what does legal advice priv relate to?

Answer 8

communications between client and legal adviser where dominant purpose is of obtaining legal advice

extends to instructions given by client to sol or by sol to barrister and even counsel’s opinion taken by sol

Question 9

what does litigation priv relate to?

Answer 9

communications between client and legal adviser for sole or dominant purpose of enabling action in relation to litigation (pending or in contemplation of client).
this includes third party communications

Question 10

does privilege extend to items enclosed or referred to in communications?

Answer 10

yes if brought into existence:
* in connection with giving legal advice or
* in connection with or in contemplation of legal proc for purposes of such proceedings.

Question 11

how does court determine whether something is privileged or not?

Answer 11

consider evidence supporting claim that shows purpose of creation was for something privileged.

Question 11

who bears burden of proving priv?

Answer 11

party seeking to claim it.

Question 11

when should the court inspect privileged documents to prove privilege?

Answer 11

last resort - only if there is evidence that those claiming have misunderstood their duty OR no reasonably practical alternative.

Question 12

when does legal advice privilege apply to corporate clients?

Answer 12

only communications with those designated to act as client

Question 12

when is litigation privilege engaged?

Answer 12

when litigation is in reasonable contemplation (includes deciding whether to litigate and settle)

Question 12

what does litigation priv cover?

Answer 12

communications beyween parties sols and 3rd parties for obtaining info / advice in connection with conduct of litigation. (Has to be sole/dom purpose).

Question 13

does litigaiton priv extend to witnesses?

Answer 13

extends to identity and other details of witnesses intended to be called in adversarial litigation.

Question 14

what documents are covered by litigation privilege?

Answer 14

documents created by a party for the purpose of instructing the lawyer and obtaining advice in the conduct of the litigation

Question 15

what documents aren’t covered by litigation priv?

Answer 15

documents obtained by a party or the party’s adviser for the purpose of litigation that were not created for that purpose.

Question 16

when will privilege attach to copy of document?

Answer 16

privilege will attach to a copy of an unprivileged document if the copy was made for the purpose of litigation and the original is not, and has not at any time been, in the control of the party claiming privilege

Question 17

what is an exception to Legal professional privilege?

Answer 17

communications in furtherance of crime or fraud

Question 18

how does privilege work with a s.34 adverse inference?

Answer 18

if accused gives legal advise as reason - not waived

if accused asks for adverse inference not to be drawn then it might be necessary to go furhter and state basis or reason for advice - might be waived

If defence reveal basis/reason for sols advice to no comment, amounts to a waiver of priv

Question 19

if accused states that they told solicitor a fact is that a waiver of privilege?

Answer 19

no, if it is the solicitor to whom the fact was communicated.