Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
37 Cards in this Set
- Front
- Back
|
Two Types of Legal Professional Privilege
|
- Legal advice privilege may arise in the context of communications between legal adviser and client - Litigation privilege between legal adviser or client and a 3rd party such as an expert |
|
|
Significance of Legal Professional Privilege
|
- Doesn't prevent witness from being called or from being asked questions but merely entitles W to object to questions about the contents of privilege communications |
|
|
Claiming Privilege in a Document
|
- Party who wishes to challenge claim must apply to court supported by evidence - Court may require document to determine a claim - The affidavit, witness statement or disclosure statement in which privilege is claimed should be as specific as possible |
|
|
Legal Advice Privilege
|
- Encompasses communications giving or requesting advice or providing or requesting information |
|
|
Litigation Privilege
|
- Attaches to confidential comms. between legal adviser or client and a 3rd party if the sole or dominant purpose of the comm. is obtaining legal advice, evidence etc. - Litigation must have been a reasonable prospect when the comm. was made |
|
|
Legal Professional Privilege and Non-Legal Advisers
|
- Litigation privilege may attach to comms. with non-legal advisers |
|
|
Legal Professional Privilege and Alternative Business Structures
|
Legal advice provided by an alternative business structure and a non legal adviser, acting at the direction and under the supervision of a legal adviser provides legal advice, it may be privileged under s.190 Legal Services Act 2007 |
|
|
Legal Professional Privilege and Company Employees
|
- In a company the 'client' may be an employee, in which case legal advice privilege may attach to comms. between the client and the LA but will not attach to comms. between employees and the legal advisers - Litigation privilege may attach to comms. between legal adviser and other employees |
|
|
Legal Professional Privilege and Comms. which are not Confidential
|
Comms. which are not confidential are not subject to legal professional privilege
|
|
|
LPP and Comms. Made for a Fraudulent or Criminal Purpose
|
- Must be prima facie evidence of the purpose |
|
|
LPP and Records which do not Record Comms.
|
A record compiled by a legal adviser is not privileged if it does not record a comm. between adviser and client |
|
|
LPP and Facts which a Witness Personally Perceived
|
LPP does not attach to facts which a witness personally perceived |
|
|
LPP and Documents that were not Privileged when Created
|
- Documents sent to the adviser are not privileged unless the adviser copies them for the purposes of litigation, provided they have never been in the clients hands - If inspecting copies of unprivileged documents selected by the legal adviser might reveal the nature of the legal advice the copies may be privileged provided that the documents have never been in the clients hands |
|
|
Waiver of Legal Professional Privilege
|
A party may decide to waive legal privilege |
|
|
Waiver of LPP: Professional Negligence Claims Against Solicitors
|
If a former client brings a professional negligence claim against his solicitor, there is an implied waiver of privilege by the former client to the extent to which this is required
|
|
|
Inadvertent Waiver of Legal Professional Privilege
|
May waive LPP accidentally: - Inadvertently permitting another party to inspect and copy a privileged document or - Reading an extract from a privileged document out in court |
|
|
Inadvertent Waiver of LPP and Injunctive Relief
|
Where LA accidentally permits another party to inspect and copy and privileged document it may be possible to get an injunction if: - the other party realised there was a mistake or - the mistake would have been obvious or - the copy was obtained by fraud |
|
|
Inadvertent Waiver of LPP and Injunctive Relief CPR 31.20
|
Provides that: Party can use a document or its contents that was sent to it inadvertently with the permission of the court |
|
|
Joint Privilege
|
Joint privilege may arise in either of 2 situations: - Joint privilege may arise from a joint retainer or - Joint privilege may arise where parties have a joint interest in the subject matter of a privileged comm. |
|
|
Joint Privilege from a Joint Retainer
|
Joint privilege may arise from a joint retainer where parties jointly retain a legal adviser
|
|
|
Joint Privilege where Parties have a Joint Interest
|
Joint privilege may arise where parties have a joint interest in privileged comms. |
|
|
Without Prejudice Communications
|
- Attaches to written or oral comms. between the parties to a dispute if made in the course of genuine negotiations to settle the dispute - The heading 'without prejudice' is not decisive but ay influence court |
|
|
Two bases of without prejudice privilege:
|
2. Express or implied agreement between the negotiating parties |
|
|
Without Prejudice Privilege and 'Open Negotiations'
|
- Does not arise if a party makes it clear that negotiations are taking place on an 'open' basis - A party may change the status of negotiations from without prejudice to open, this does not have a retrospective effect |
|
|
The Effect of Without Prejudice Privilege: Between the Parties
|
As between the negotiating parties, the effect is, that whether the negotiations were successful or unsuccessful, the comms. were are not admissible in subsequent proceedings |
|
|
The Effect of Without Prejudice Privilege: 3rd Parties
|
A party may also claim the privilege against a 3rd party in the context of subsequent proceedings concerning the same subject matter
|
|
|
Waiving the Without Prejudice Privilege
|
- In the context of litigation between one of the parties and a 3rd party, it appears the former party may waive privilege |
|
|
Exceptions to Without Prejudice Privilege
|
2. If the comms. were made in preparing for or furthering crime or fraud or if excluding the evidence would shield unambiguous impropriety or 3. If an offer is made 'without prejudice except as to costs' evidence of its making is admissible after the case has been decided in relation to the issue of costs Part 36 offer |
|
|
CPR 36.13
|
- A CPR Part 36 offer is treated as being made without prejudice except as to costs - Judge must not be informed that offer has been made until the case has been decided Does not apply: if defence of tender before claim is relied on; if proceedings have been stayed following the acceptance of a Part 36 offer and if the offeror and offer agree in writing that it wont apply |
|
|
Tender Before the Claim
|
The defence that prior to commencement of proceedings the defendant had unconditionally offered the claimant the amount due/a sufficient amount to satisfy the claim |
|
|
Privilege Against Self-Incrimination
|
- W need not answer a question tending to expose him to a criminal charge or a penalty - For privilege to arise there must be reasonable grounds to believe that answering the question would tend to expose the witness to a charge or penalty - Does not arise where question would add little to the risk |
|
|
Self-incrimination and Spouses/Civil Partners
|
A witness may claim the privilege against self-incrimination in civil proceedings to avoid incriminating the witness' spouse or civil partner |
|
|
Self-incrimination and Foreign Proceedings
|
- Privilege against self-incrimination may not be claimed to prevent the risk of exposure to foreign proceedings - In such circumstances the court still possesses discretion not to require the witness to answer the question |
|
|
Self-incrimination and Warnings etc.
|
- If the judge improperly requires a privileged question the evidence will not be admissible in subsequent proceedings against him |
|
|
Self-incrimination and Waiver of Privilege
|
The privilege against self-incrimination may be waived by the party who is entitled to claim it
|
|
|
Self-incrimination and Pre-Existing Incriminating Documents
|
- Privilege cannot be relied on so as to object to pre-existing incriminating documents
|
|
|
Self-incrimination and Statutory Abrogation and Alternative Protection
|
-Statute may remove privilege against self-incrimination but may provide an alternative protection to prevent compelled answers from being used in criminal proceedings - Civil courts may be prepared to order the disclosure of information in relation to which the privilege could be claimed if prosecuting authorities undertake not to use the material if W is prosecuted |
