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Chapter

Cover Evidence

9. Legal Professional Privilege  

Chapter 9 focuses on the doctrine of legal professional privilege. Technically, this encompasses two separate privileges: legal advice privilege, which protects communications between client and legal adviser; and litigation privilege, which protects communications between client or legal adviser and a third party, so long as preparation for litigation is the dominant purpose of the communication. Legal advice privilege, unlike litigation privilege, is regarded as ‘absolute’ and incapable of being overridden. The chapter also briefly looks at ‘without prejudice privilege’, aspects of which the House of Lords and Supreme Court have considered in relatively recent years.

Chapter

Cover Evidence Concentrate

11. Privilege  

This chapter looks at the rules relating to legal professional privilege and, in outline, the doctrine of the privilege against self-incrimination. Under these provisions potentially relevant evidence may be excluded at trial. The role of legal professional privilege in protecting defendants in criminal trials is outlined and the absolutist stance of the courts discussed. The chapter outlines the various immunities which are embraced under the privilege against self-incrimination. Summarizing some recent case law, the chapter reflects on the extent to which the privilege may now extend to a broader set of circumstances than the earlier authorities suggested. For example, the privilege may not necessarily be unavailable against the use of compelled questions in an administrative enquiry.

Chapter

Cover The Modern Law of Evidence

22. Privilege  

This chapter discusses several well-established principles whereby relevant evidence is excluded because of extrinsic considerations which outweigh the value that the evidence would have at trial. Three types of privilege are considered: (i) the privilege against self-incrimination (including statutory withdrawal of the privilege, compatibility with Art 6 of the European Convention on Human Rights, the compulsory production of pre-existing documents and materials, and substituted protection); (ii) legal professional privilege, which enables a client to protect the confidentiality of (a) communications between him and his lawyer made for the purpose of obtaining and giving legal advice (known as ‘legal advice privilege’) and (b) communications between him or his lawyer and third parties for the dominant purpose of preparation for pending or contemplated litigation (known as ‘litigation privilege’); and (iii) ‘without prejudice’ privilege, which enables settlement negotiations to be conducted without fear of proposed concessions being used in evidence at trial as admissions.

Chapter

Cover Murphy on Evidence

19. Public interest immunity and privilege II  

Privilege

A privilege is a rule of law that permits a witness to refuse to answer a question, or a party to refuse to produce certain materials. This chapter discusses the privilege against self-incrimination. Legal professional privilege, consisting of legal advice and litigation privilege, is explained along with the exceptions and the importance of the ‘dominant purpose’ rule in litigation privilege and the limitation of litigation privilege to adversarial, and not investigative or inquisitorial, proceedings. Other privileges, in particular the ‘without prejudice’ rule in civil cases, and the protection of sources of information contained in publications under the Contempt of Court Act 1981, s. 10, are also examined.