The law of privilege / editor, Bankim Thanki [and others] ; contributors, Chloe Carpenter [and others] ; foreword by the Rt Hon. Lord Justice Tomlinson.
2011
KD7519.A77 L39 2011 (Map It)
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Details
Title
The law of privilege / editor, Bankim Thanki [and others] ; contributors, Chloe Carpenter [and others] ; foreword by the Rt Hon. Lord Justice Tomlinson.
Published
Oxford ; New York : Oxford University Press, 2011.
Call Number
KD7519.A77 L39 2011
Edition
Second edition.
ISBN
9780199595433 (cloth : alk. paper)
0199595437 (cloth : alk. paper)
0199595437 (cloth : alk. paper)
Description
lv, 398 pages ; 26 cm
System Control No.
(OCoLC)727126780
Summary
"A comprehensive reference to legal professional privilege in both contentious and non-contentious situations, this book also address privilege against self-incrimination. Providing detailed coverage of the nature of privilege, how it arises, how it is lost, and its limits, this second edition builds on the success of the first to provide an authoritative practitioner reference on this widely relevant subject. Written by a leading team from Fountain Court Chambers the book is edited by Bankim Thanki QC, who appeared in the Three Rivers litigation which challenged long-established assumptions about the nature and scope of privilege. The book also addresses the impact of the Human Rights Act 1998. The text is divided into eight logical themes. It looks first at the policy underlying privilege and its nature, and then at the definitions of legal advice privilege, which relate to communications between lawyer and client; and litigation privilege, which can attach to third party communications in the context of litigation. It goes on to provide expert guidance on issues that arise regularly in practice, such as exceptions (including a detailed analysis of the crime/fraud exception), multi-jurisdictional issues, procedural matters, and problem areas, such as pre-existing and partly privileged documents. It also covers loss of legal professional privilege (loss of confidence, and implied and express waiver); joint and common interest privilege; the linked area of without prejudice privilege, its scope, exceptions, rules governing waiver, and the position in respect of mediation; and the privilege against self-incrimination. The book is clearly laid out, with extensive cross-referencing and useful summaries throughout to ensure ease of understanding and quick access to information. It is an essential reference tool for practitioners in all fields of practice, and for students of Civil and Criminal Procedure. With a foreword by Lord Justice Tomlinson"-- Provided by publisher.
Bibliography, etc. Note
Includes bibliographical references and index.
Record Appears in
Added Author
Table of Contents
List of Abbreviations
xxiii
Table of Cases
xxv
Table of Legislation
xlix
Table of Legislation from Other jurisdictions
lv
1.
Legal Professional Privilege: Fundamental Principles
A.
Introduction: The Nature of the Privilege
1
B.
Classification
9
C.
Historical Origins of the Two Sub-heads of Privilege
13
D.
Rationale
17
(1).
Legal advice privilege
17
(2).
Litigation privilege
23
E.
The Basic Features of Legal Professional Privilege
26
F.
The Client's Privilege
35
G.
Adverse Inferences
39
H.
Who Are Lawyers for the Purposes of the Privilege?
41
I.
How Long Does the Privilege Last?
63
J.
EC Law
70
K.
The Impact of the Convention
71
2.
Legal Advice Privilege
A.
Introduction
1
B.
Who is the Client?
5
(1).
The implications of Three Rivers 5
6
(2).
Rationale for the corporate client test
22
(3).
Reconciling Three Rivers 5 with previous Court of Appeal authority
36
C.
Who is a Lawyer?
42
D.
Acting in Person
43
E.
Communications
48
(1).
Extent of the need for actual communications after Three Rivers 5
50
(2).
Communications through the intermediaries or agents of either lawyer or client
76
(3).
The requirement of confidentiality
85
F.
What Constitutes Legal Advice or Assistance?
91
(1).
The law prior to Three Rivers 6
91
(2).
The broad rest following Three Rivers 6
96
(3).
The need for a separate consideration of `legal' and `advice or assistance'
113
(4).
No requirement of a connection with litigation
126
(5).
Practical examples and difficult areas
129
G.
Whether the Privilege Should be Confined to Lawyer--Client Communications: The Current Status of Three Rivers 5
140
H.
Is There a Dominant Purpose Test for Legal Advice Privilege?
173
3.
Litigation Privilege
B.
What Type of Material is Covered?
11
(1).
Communications
12
(2).
Matters other than communications
24
(3).
Confidentiality
33
C.
Nature of the Litigation
47
(1).
Actual or anticipated litigation
47
(2).
What is meant by `litigation'?
54
D.
Dominant Purpose Test
68
(1).
What purpose?
68
(2).
Dominant purpose
73
(3).
Whose purpose?
85
E.
Who Can Assert Litigation Privilege and When?
88
F.
Communications with Particular Persons
97
(1).
Experts
97
(2).
Clinical case managers
113
(3).
Lawyers and others in relation to litigation costs
115
G.
The Future of Litigation Privilege
120
4.
Legal Professional Privilege: General Issues
B.
Problem Areas---Particular Types of Document
3
(1).
Partly privileged documents
3
(2).
Pre-existing documents, copies, and selections
8
(3).
Subsequent litigation
27
(4).
Dissemination of privileged material
29
C.
Exceptions to Privilege
35
(1).
The crime/fraud exception
36
(2).
Where the communication is a material fact in itself
68
(3).
Better right of another party
71
(4).
Where secondary evidence may be given
72
(5).
Particular relationships
76
(6).
Statutory exceptions
78
D.
International Aspects of the Law of Privilege
83
(1).
Introduction
83
(2).
Choice of law
84
(3).
International aspects of the English substantive law of privilege
88
E.
Procedural Issues
91
(1).
Effect of privilege
91
(2).
Claiming privilege
94
(3).
Challenging privilege
102
(4).
Inspection by the court
107
(5).
Role of the solicitor
112
5.
Loss of Privilege
B.
Loss of Confidentiality
4
(1).
Requirement of confidentiality
4
(2).
Lack of confidentiality as between parties to litigation
9
(3).
Disclosure co third parties and loss of confidentiality
11
C.
Waiver
19
(1).
Classification of waiver
19
(2).
Disclosure in earlier proceedings or investigations
20
(3).
Waiver during proceedings
27
(4).
Other instances of implied/compulsory waiver
75
D.
Restraining the Use of Privileged or Confidential Documents
106
(1).
Introduction
106
(2).
Goddard v Nationwide Building Society and subsequent cases
109
(3).
Where the document is disclosed and inspected
111
(4).
Other factors going to relief and the extent of relief
119
E.
Effect of Waiver
122
(1).
Preliminary issues
122
(2).
Collateral waiver
124
6.
Joint and Common Interest Privilege
A.
Joint Privilege
1
(1).
Introduction
1
(2).
Joint retainer
2
(3).
Joint interest
7
B.
Common Interest Privilege
14
(1).
Introduction
14
(2).
A common interest: a common solicitor?
20
(3).
A common interest: widening boundaries
26
(4).
A common interest: nature and ambit of the relationship
30
(5).
The nature of common interest privilege
36
(6).
Waiver of common interest privilege
52
7.
Without Prejudice Privilege
A.
Nature of and Rationale for the Privilege
1
B.
Scope of the Privilege
7
C.
Exceptions to the Application of the Privilege
29
D.
Waiver of Privilege
39
E.
Procedure
41
F.
Conciliation Privilege
42
8.
Privilege against Self-incrimination
B.
How to Assert rhe Privilege
9
C.
Potential Rationales of the Privilege
20
D.
The Privilege is not Absolute
28
E.
Civil Evidence Act 1968, s 14
30
F.
`Refuse to Answer any Question or Produce any Document or Thing'
32
G.
`Would Tend to Expose that Person to Proceedings for an Offence or for the Recovery of a Penalty'
41
(1).
A real and appreciable risk
41
(2).
Applicability of the privilege outside legal or quasi-judicial proceedings
43
(3).
Exposure to proceedings under foreign laws
46
(4).
Privilege against self-incrimination for contempt of court or perjury
50
(5).
Use of compelled evidence in directors' disqualification proceedings and disciplinary proceedings
53
H.
Factors in the ECHR Jurisprudence
55
I.
Statutory Restriction of the Privilege
60
J.
Waiver of the Privilege
65
Index
375