Flashcards in Privilege and Immunity Deck (51):
What is the distinction between privilege and confidentiality?
In general terms, confidentiality is a legal duty which means that they have a duty to keep the discussions they have with clients private. Privilege is a legal right, which takes the form of an exception to do something.
⁃ In general terms privilege is part of the law of evidence, whereas confidentiality is part of the law of obligations. The general rule is that confidential information as such is not covered by evidential privilege (see eg Santa Fe International Corpn v Napier Shipping SA 1985). Probably in this context 'confidentiality' is being used in a loose sense as equivalent to 'privilege' (see eg More & Root Wimpey Highland Fabricators Ltd 1983
Santa Fe International Corpn v Napier Shipping SA 1985
This case concerned a civil action in which the pursuer wanted to obtain documents held by the defender (there is a procedure for doing this) but the defender stated that the documents in question were contracts with third parties and the contracts contained clauses which placed duties of confidentiality in respect of the details of the contract. Nonetheless the court held that private duties of confidentiality do not amount to legal privilege and therefore in the interests of justice the defender's were required to hand over the contractual documents despite the requirement of confidentiality.
More & Root Wimpey Highland Fabricators Ltd 1983
What does privilege mean under the law of evidence?
Under the law of evidence, privilege means the right not to give evidence in court or the right not to produce a document which is required for purposes of a court action. This attaches to a particular person, which means that they have the right not to divulge information on a particular subject.
Public interest is the most common instance when privileged information becomes used.
Can persons waive their right to privilege?
Yes -- Also, persons can choose to waive their privilege so the other party to the proceedings cannot object to those proceedings.
Does the information remain privileged when it is told to third parties? Can the third party disclose information?
The court decides whether the information was obtained lawfully and discusses privacy rights etc, and the wider interest of justice. Court will decide whether information is to be privileged or not.
What are the recognised categories of privilege in Scots law?
i) Legal professional privilege
ii) Communications post litem motam (communications made in contemplation of litigation)
iii) Communications between spouses
iv) Communications in aid of negotiation
What is legal professional privilege?
This deals with privilege attaching to communications between a client and professional (legal adviser). It applies to solicitor-client communications and also to professional legal advisors (e.g. advocates). But it does not apply to legal advice given by a person who is not professionally legally qualified. The reasoning is that persons should be able to speak freely to their advisors.
Where the client authorises her solicitor to tell someone the information, this is effectively waiving her right to privilege.
If the client decides that she wants to cite her lawyer as a witness it is also waived.
s265 Criminal Justice (Scotland) Act
where any person who has been agent of the accused… [look up**].
What does legal professional privilege cover?
It covers all communications between the lawyer and client whether or not they are to do with litigation. Covers not only the content of solicitor-client communications, but even the client's identity
*Conoco (UK) Ltd v The Commercial Law Practice 1997
⁃ A client approached the solicitors and asked that the solicitors should write to a company and tell them that he was in possession of interesting information. The information was that he knew of a fraud committed against the company by a third party (an over payment that the company had made to an individual).
- The client wanted his identity to be kept secret from the company and it was held that the privilege extended to this fact.
- The company brought a petition under the Administration of Justice Act to order a client to disclose information and its digression to order someone who the court feels might go on to be a party in civil proceedings. The company tried to use this section of the Act, and in turn they claimed confidentiality…
- The court decided that if a client had communicated a fact known to him, in the course of making instruction to a solicitor then the solicitor must make that fact confidential.
- So if the communications relate to advice or instruction it is confidential.
- Also privilege can attach to the identity of the client.
- Held: by instructing the solicitor to write the letter to the company, the client had waived confidentiality, in respect of the part of information that he asked the lawyer to convey (I.e. That there was an individual that they had overpaid money to) BUT he had not waived confidentiality in relation to his identity.
- There was a public interest reason for disclosing the information but this case is authority for the fact that identity was privilege information.
⁃ However note that there is an exception to the privilege where either the lawyer or the client are involved in some illegal act. And in this case the particular lawyer client relationship was so bound up in an illegal act, the privilege could not apply. Thus the lawyers had to reveal who the client was.
What if there is no solicitor-client relationship?
HM Advocate v Davie (1881)
⁃ A man approached a solicitor to ask if the solicitor would act for him in a civil action. The solicitor declined. The would-be client was prosecuted for perjury said to have happened during that civil action and the question here was whether the Crown could require the solicitor who had refused to act earlier to disclose what the now accused had said to him? The judge allowed the evidence but it was marked as an issue which should be decided by a larger court, but nothing came of this because the charge was found not proven anyway.
⁃ GM: If this case is authority for the view that privilege does not extend to communications made in trying to set up a lawyer-client relationship then it must be regarded as a wrong decision since most legal systems do grant evidential privilege in this scenario.
- Doubts as to whether this is representative of Scots law. In England the privilege attaches as soon as lawyer client relationship is in contemplation.
What is the exception where the solicitor is alleged to have been concerned in an illegal act by the client?
Micosta SA v Shetland Islands Council 1983
⁃ An action against a local authority for an alleged abuse of statutory powers by the authority. The pursuer's wished to see documents passing between the authority and their solicitors and they said that since the action concerned an alleged illegal act (breach of statutory powers) lawyer client privilege did not apply. The court held that this does not follow - the exception applies only where the illegal act is itself part of the lawyer client relationship (otherwise you could never get legal advice if you were accused of doing something illegal).
- Held privilege would not apply if the legal advisers had been directly involved in the action complained of.
“The only circumstances in which the general rule about privilege will be suspended is fraud etc…which is the subject matter of inquiry”. [Look up].
- This applies regardless of whether the law agent knew that they were involved in a legal act or not —Kelly v ???
⁃ *Conoco (UK) Ltd v The Commercial Law Practice 1997
⁃ See above.
What are communications post litem motam (communications made in contemplation of litigation)?
Communications post litem motam are ones made in contemplation of litigation. They are always protected by legal professional privilege, even if they are not themselves solicitor-client communications – e.g. communication between solicitor and possible expert witness (third party). Any communication in connection with the litigation is privileged.
General rule: no party can recover material which the other party has drawn up for the purpose of preparing his own case (so one side cannot contact the other side and ask for material they’ve prepared for that case)
Anderson v St Andrew's Ambulance Association 1942
⁃ The pursuer was bringing an action against an ambulance and omni bus association for damages sustained.
- This case concerned a collision between an ambulance and an omni bus. The owners of the bus took various photographs of the locus, the bus itself and with permission photos of the ambulance too. A man who had been injured in the accident sued both the ambulance and bus owners. The ambulance owners claimed that the fault was that of the bus and sought to recover the photographs taken by the bus owners. It was held that these photographs were taken with a view to defending litigation and therefore not recoverable - they were privileged.
- Two of the defenders claimed the accident was the fault of the other two and vice versa. In issue here, a motion (request by court) for the first two defenders were seeking a court order to gain access to documents which the other defender had. This was initially granted but the decision was heard again by inner house.
- Held: no party can recover from another in preparation of a case.
There is an exception to this privilege that if there is an immediate inspection or examination following an incident which is done solely for the purpose of finding facts by an employee or person responsible for safety then those reports are not made with a view to litigation and are therefore not covered by privilege.
⁃ The difficulty is drawing the line between reports solely for finding facts and reports with a view to litigation is very difficult.
More v Brown and Root 1983
⁃ Concerned damages arising from an accident where a man fell from a rugged ladder (scaffolding?). He said that the defender's safety officer had taken photographs of the locus and that they were taken shortly after the accident. He sought to recover these photographs for his own case.
- It was held that the photographs couldn't be recovered by the man claiming damages because they had been taken with a view to protecting the defender's position in any forthcoming litigation.
- The motion here was refused on similar grounds to Young — reports must be made at the time of accident, by employees, just after the accident happened.
Marks & Spencer v British Gas 1983
⁃ This involved an explosion of gas. An action was raised by M&S. M&S wished to recover all documents made immediately after the explosion. The question here was whether the documents had been made solely to investigate the facts or had they been made to protect the defenders in any ensuing litigation? The court accepted that that distinction very much depended on the facts and circumstances of each case but that in this particular case the reports themselves were mainly concerned with a scientific explanation of the reasons for the explosion rather than written with a view to litigation.
- Here the court drew a distinction between reports made in contemplation of judicial proceedings and making inquiries.
- General rule: reports and things drawn up in contemplation of litigation are privileged. Exception: reports made by employees to employer are not if they arise around the time of the accident.
Young v National Coal Board 1957
⁃ A man was killed at work because of a fault in electrical equipment. After the accident the employer's instructed an expert to carry out an examination of the machinery. Could this report be recovered by the deceased man's family? It was held that in the facts of this case no - the defendants instructed the expert with a view to protecting their decision in any future litigation.
- His relatives moved for diligence (trying to recover a report made after the accident about the possible cause of the explosion that killed the electrician). The court rejected this as the report was not made at the time of the accident.
What happens if one party to the litigation tries to rely on a chain of litigation?
This means that this person has waived any privilege that might otherwise apply to the rest of the communication or correspondence. To avoid “cherry-picking” of evidence.
Evidence (Scotland) Act 1853, s 3
In civil cases: Evidence (Scotland) Act 1853, s 3 provides that nothing in that provision:
⁃ "shall in any proceedings render any husband competent or compellable to give against his wife evidence of any matter communicated[ It only applies to communications between husband and wife. It wouldn't therefore apply to evidence about observations.] by her to him during the marriage, or make any wife competent or compellable to give against her husband evidence of any matter communicated by him to her during the marriage." In other words, neither husband or wife can be forced to give evidence about communications which happen during the course of their marriage. This applies to any communications (not just those relating to proceedings).
Who can claim the communications between spouses privilege?
⁃ Privilege can exist for both parties. This means the privilege can only be waived if both parties agree.
- One of other of the spouses can waive the privilege if he or she wants to.
- This does not apply to Civil Partnerships and there are questions about whether it applies after a marriage is over.
- Dickson (textbook) claims that privilege will survive beyond death or divorce but some commentators disagree.
Note that there is no similar provision in respect of civil partners.
A slightly different form of privilege in criminal cases has now been removed. (See lectures on Witnesses.) Criminal Justice Licensing Act 2010??
Does it continue if the parties have divorced?
It is unclear. GM thinks it does.
What are communications in aid of negotiation?
These communications are trying to avoid litigation and are trying to negotiate a settlement of some kind. If two parties in an action try to settle out of court then the communications they make in this regard will be privileged. They may also be covered by the solicitor-client privilege; if they are not then this privilege attaches. The idea here is to aid frank and open discussion.
Nature and extent of privilege: Dickson, para 305:
⁃ "It has repeatedly been held incompetent to prove against a party an admission which he has made in an attempt to compromise[ This means to settle.] the case, for such transactions are commonly arranged upon mutual concessions; and the preliminary negotiations are carried on under the implied condition that they will not be evidence in the event of the attempt being unsuccessful."
The idea behind this rules is that the law wishes to encourage settlement between parties. So the rule developed that if parties are negotiating and negotiations are unsuccessful then what is said purely to bring about a negotiation is privileged because otherwise it would be difficult to negotiate.
In English law this doctrine is known as the "without prejudice" rule. But in Scots law use of 'without prejudice' is neither necessary nor sufficient to confer evidential privilege
Fyfe v Miller (1839) 13 S 809; Williamson v Taylor (1845) 7 D 842
In both of these old cases it was held that correspondence between parties with a view to negotiating a settlement which did not come about were privileged.
A business owner believed he was owed money, in court the pursuer (confectioner) tried to rely on a statement of ex communication which had taken a view of reaching a settlement. he tried to rely on the case and say that the person had admitted that he made this debt. Held: these communications should be withdrawn from the court and even said that the pursuer was liable to the defender to some extent. rule establishing that this applies.
Williamson — if communications are trying to reach a settlement then they will be privilege. In this case “without privilege” was not used; nevertheless, the information was not privilege.
Assessor for Dundee v Elder 1963 SLT (Notes) 35; Bell v Lothiansure Ltd 1990 SLT 58
These cases seem to suggest that Scots law follows English law, but GM thinks it doesn't because there are cases to suggest otherwise - see the cases below.
This was a decision of the lands valuation appeal court. They were considering how to determine the value of a house which was essentially being rented out (valuation role — document which records how much property is worth annually and names of tenant and occupier etc). In written communications, the owner of the house had indicated that he would be willing to have the house valued at less than it was currently valued on the valuation role. Held: when negotiations for a settlement take place and are expressed as being without prejudice. the court said when these negotiations are titled without prejudice they should not be used to fix the valuation; especially when there are other pieces of evidence to suggest the value of the house. the court also said that when negotiations are not expressed as being without prejudice they … So here the valuation committee had tried to rely only on the communications about lower value, and no other evidence although there was some available.
Bell — said the general rule applied; nothing said or written under the heading without prejudice except where parties consent to it being used.
What is the scope of privilege?
Privilege does not extend to all matters said or written during course of negotiations but only to admissions or concessions made with a view to securing settlements.
Burns v Burns 1964
⁃ Wife claimed that the husband borrowed money from her (£100). The parties had written letters to each other marked without prejudice. In one of his letter's the husband's lawyer said that he did receive the money but he repaid it.
- This letter was heaeded with the words “without prejudice”.
- The Sheriff decided that there was no privilege covering the admission that he had received from his wife. So even though the letter was headed without privilege…
- The negotiations were unsuccessful. It was held that that letter could be used, although it was marked without prejudice because the husband's didn't say e.g. that he never received the money at all but in order to negotiate a settlement he was willing to pay a small amount. Rather, since he admitted he received the money but had repaid it this was not subject to evidential privilege.
⁃ [So there is a distinction between admitting something as fact in negotiations and speaking in purely hypotheticals, on the basis of which you will negotiate. Even if something is marked with the words "without prejudice" - this is not enough!]
Watson-Towers Ltd v McPhail 1986
⁃ An action for payment of money. The pursuers relied on a letter sent on behalf of the defenders made on a "without prejudice" basis. In the letter the defenders admitted that they'd received some money from the pursuers. It was held that the despite the "without prejudice" expression was used, the letters could still be admitted as evidence of the fact that the pursuer's had given money to the defenders because they didn't deny receiving money.
⁃ [Similar to Burns - there is a distinction between stating something as a matter of fact (not subject to privilege) and making a hypothetical admission with a view to settling (subject to privilege).]
- Pursuer was seeking payment of £30k and the pursuers tried to get a summary decree for a lesser sum.
- The pursuer was relying on a letter written on the pursuers half to settle the claim of settlement for 15k. In addition to that offer the letter also contained some factual information as to why £15k was the amount they were willing to offer. The defender tried to claim the letter was written without prejudice and the offer to claim that money was written without prejudice.
- Held: the terms of the letter amount to a statement of fact; not a concession made in order to secure a settlement.
Daks Simpson Group plc v Kuiper 1994
⁃ An action was raised for payment. One party tried to negotiate by writing to the other setting out a schedule of payments which they had received from the pursuers. The letter was written titled "without prejudice".
- The court held that using this expression did not create an evidential privilege and the letter had contained an admission of fact (list of alleged payments which had been made) (not a hypothetical) which was therefore not subject to evidential privilege.
What scheme applies to family mediators?
A similar scheme applies to 'family mediations'. Information as to what occurred during sessions conducted by accredited family mediators is generally inadmissible in civil proceedings: Civil Evidence (Family Mediation) (S) Act 1995, s 1. Certain limited exceptions are recognised: s 2.
⁃ The general idea is that the law wants parties involved in family disputes to reconcile - so in general what is said in the course of a mediation is privileged.
What are the situations where confidentiality applies but privilege does not?
There is no privilege for e.g. communications with doctors, journalists, family members, ministers of religion. They have a relationship of confidentiality but no privilege..
Another type of confidentiality where there is no privilege is anything said to a priest or minister of religion
Does the court ever have a discretion to excuse a witness without privilege from answering?
Yes. See HM Advocate v Airs 1975
HM Advocate v Airs 1975
⁃ Airs was a journalist and was called for the crown prosecution. In the course of a criminal trial he was called to the witness box and asked if he had interviewed somebody in connection with the crime. He said he had, he had had a certain meeting with at a certain time. He was then asked if the person he had interviewed was the accused and the journalist refused to answer explaining that he had promised his source that he would not reveal their identity. This conduct was treated as being in contempt of court (refusal to answer questions where there is a duty to answer). HC Held: where there is no privilege where someone is a competent and compellable witness they have to answer every question. But there may be circumstances where the court has a discretion for example where there is a relationship of confidentiality. But a relationship of confidentiality does not automatically give rise to privilege. He was found guilty of contempt of court.
What is the statutory protection for journalists?
There is now limited statutory protection for journalists: Contempt of Court Act 1981, s 10[ This provides that a journalist is not now guilty of contempt of court for refusing to disclose the source of information, but the court can order disclosure that is necessary in the interests of justice or national security.]. So journalists are somewhat protected, they are not necessarily going to be held in contempt of court if they refuse unless disclosure is in the interests of national security or justice.
HM Advocate v Daniels 1960 [not mentioned]*
The priest was asked whilst giving evidence to reveal what had been said to him at confession. He was reluctant to do so. The court excused the priest from giving the evidence as a matter of discretion (but the rule is that no evidential privilege attaches to this situation).
What is public interest immunity?
This is a claim that can be made that says that information should not be disclosed if there is a wider public interest that prevails because it would be harmful to the public interest to do so. The public interest here must be weighed against the public interest in the administration of justice:
Conway v Rimmer  AC 910 at 940 per Lord Reid).
"It is universally recognised that there are two kinds of public interest which may clash. There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done."
What is a closed material procedure?
Absent statutory authority, it is not open to the courts to deal with a claim of public interest immunity by adopting what is called a "closed material" procedure
Al Rawi v Security Service  1 AC 531)
This case said that without statutory authority saying that the rules must be followed. it concerned a number of claimants that had been detained by authorities and claimed they had suffered ill-treatment, they tried to seek damages agaisnt a number of these authorities. the defendants accepted that the claimants had been detained but denied that they were liable for any ill-treatment. they wanted to rely upon substantial amount of information that could not be heard by the public. they requested it be heard in closed proceedings so the claimants nor the lawyers would be able to hear the special information. the SC held that parliament alone can introduce a closed material procedure for ordinary civil claims and it wasn’t open to the court to do this.
Justice Security Act 2013
This Act is in respect of CIVIL not criminal proceedings. Part 2 enables the high court and court of appeal etc., to make a declaration that the case is one in which a closed material application may be made in relation to specific pieces of material. The provision allows for an application to be made, it is not an automatic right. The application is usually made by a party to the proceedings, or the Secretary of State or courtThe court must be satisfied that the material would damage national security.
What is a closed material procedure?
Note that in certain civil proceedings the court adopts a special 'closed material' procedure concerning sensitive material relating to national security and various issues of immigration and employment (Justice and Security Act 2013, Part II).
⁃ The closed material procedure allows evidence or witnesses usually relating to issues of national security to be put before the court, but the defence have no access to it - they are not in court when the evidence is led. A special advocate is appointed to a assist the court who is not allowed to disclose the evidence to the defence.
Topical example: recently enacted Counter Terrorism and Security Act 2015. This Act makes it possible to apply to have hearings in respect of civil proceedings.
Who can claim public interest immunity?
It is now recognised that it might extend beyond non-governmental departments, police authorities etc.
Some of the Scottish cases have suggested that only the Lord Advocate or a Minister of the Crown could claim public interest immunity: e.g. Higgins v Burton 1968 SLT (Notes) 52. But this is now recognised as too restrictive: see *Al-Megrahi v HM Advocate 2008 SLT 333 and the reliance placed there on R v Lewes Justices, ex parte Home Secretary  AC 388.
Higgins v Burton 1968 SLT (Notes) 52
The court said that it would strongly be of the opinion that there is no such thing as public interest unless the interest would be a national one and put forward either by the crown or the LA.
⁃ This case concerned an action for damages raised by the parent of a child who suffered both physical and emotional injuries. The parent who raised the action wanted to recover documents from a local child guidance clinic which was run by the local authority. The relevant point was that the court held that only a Minister of the Crown could claim public interest immunity.
*Al-Megrahi v HM Advocate 2008 SLT 333
Lockerbie bombing case. the case concerned the referral of Al Megrahi’s conviction to the SCCR Commission, the Commission was given access to protectively marked documents (which had been given to UK gov but never disclossed to AM’s defence). It was assessing whether there are any grounds for his case to be overturned. The SCCR made the argument that there had potentially been a miscarriage of justice because the defence lawyer was never able to see the documents which are protected. the petitioner (AM’s lawyer) was trying to access the documents. In response to this claim the LA and the AG for Scotland both made responses to both of the parties position. So AM tried to say we should have access to these documents, the AG said these documents should not be disclosed and should be protected by public interest immunity. the issue here was that the UK gov official was trying to make the claim of public interest immunity rather than the LA herself. The HC said that the LA’s failure to reject based on public interest immunity does not preclude the AG from making a claim that there should be public interest immunity. the position the LA took was subject to the AG’s plea. So the claim of publc interest immunity does now not only apply to the AG.
However the duty was met by adopting the position of allowing the competition interests to be adjudicated by the court.
So it is not only open to the LA or Crown to make a claim for public interest immunity.
⁃ The defence wanted to recover certain documents which had not been disclosed at the original trial. The Lord Advocate did not object to the documents being disclosed, but another law officer, the UK Advocate General did enter an objection to the disclosure. The important point was that the court referred to an English case (R v Lewes Justices, ex parte Home Secretary ) in which the HL suggested that public interest immunity is not something that can only be claimed by a Minister of the Crown.
Is a minister's PII objection final?
A minister’s PII objection is not final. The Scottish courts have always asserted the right to review[ A minister or another interested party puts together a PII certificate but it is open for the court to look at that certificate and decide whether ti should actually apply or not. A minis] a PII certificate.
The English courts used to treat it as final but rejected that position in Conway v Rimmer  AC 910.
*Glasgow Corporation v Central Land Board 1956 SC (HL) 1
Who makes the claim for public interest immunity?
It is normally done by a Minister of the Crown (e.g. The Lord Advocate).
But this suggestion that only a Minister of the Crown could claim public interest immunity is too restrictive:
⁃ *Al-Megrahi v HM Advocate 2008
When might it be in the public interest to refuse disclosure?
See examples of cases where public interest immunity is allowed to refuse disclosure.
⁃ I Dennis, The Law of Evidence, 3rd edn (2007) paras 9.31-9.43, helpfully categorises potential cases as follows:
⁃ (A) National security and defence
⁃ (B) International relations
⁃ (C) State papers: matters of high-level government policy
⁃ (D) Low-level policy communications and routine reports
⁃ (E) Confidentiality and the protection of sources of information
⁃ Claims in the first three categories can generally be expected to succeed – the remaining two present greater questions of nuance.
*D v National Society for the Prevention of Cruelty to Children 
⁃ The NSPCC was an independent body which investigates allegations of child abuse / negligence. The society received a complain from an informant that a 14 month old girl was being abused or neglected in some way. The society went to the parent's home and found nothing amiss. The girl's mother raised a civil action claiming that she had suffered personal injuries as a result of the investigation and claimed the society were negligent in not making initial investigations about the original complaint. They questioned her on various issues and she said that as a result of this she suffered continued shock.
- The NSPCC denied they had been negligent in their investigation and applied for a PII to refuse disclosure of the identity of the information. The mother wanted to know the identity of the informant.
⁃ The NSPCC refused to disclose the name of the informant, claiming public interest immunity. They argued that in order to function properly they needed to know that any information brought to them must be in confidence.
⁃ The court held that in other cases public interest immunity applied where the police in a criminal case had received information from an informant and that it is important for the operations of the criminal justice system that the identity of informants remains anonymous. Thus in order to allow the NSPCC to effectively investigate allegations of child abuse, it was necessary to protect the identity of people who made allegations to the society.
AB v Glasgow and West of Scotland Blood Transfusion Service 1993
⁃ This case conceded a man who had been infected with HIV as a result of receiving blood transfusions. The man wanted to know the identity of the donor of the blood on the basis that the donor may or must have known that his blood was such that if someone else received the blood they would get HIV in order to raise an action for damages.
⁃ Immunity was claimed by the blood transfusion service. The court held that although the petitioner in this case had a legitimate interest in pursuing his claim, nonetheless there was an overriding national/public interest in maintaining a supply of blood for the purposes of transfusion and therefore the public interest immunity was upheld. Held: any interest the petitioner had in trying to claim damages was less important than the public policy interest.