Generalised Rules of Fairness in Evidence Law

Date01 January 2000
Published date01 January 2000
Generalised Rules of Fairness in Evidence Law
Jonathan Auburn*
Evidence law often concerns itself with the exclusion of relevant and reliable
material for reasons external to proof. In one sense this is inherently unfair to the
party seeking to adduce such evidence. Where this is done courts may seek to
develop exceptions to the general rule in order to prevent the most egregious of
injustices. The result arrived at may well be a set of exceptions which are based
upon broad and justifiable fairness concerns, but which bear little relation to the
substantive principle they are operating on.
The doctrine of waiver of legal professional privilege is a good example of this. It
is one of the most important elements of the substantive privilege rule. Under the
traditionally accepted doctrine, waiver may be the only true ‘exception’ to privilege,
being the only circumstance in which a party may lose the benefit of a privilege they
previously held.
Understanding the boundaries to the doctrine of waiver is vital to
understanding the scope and extent of protection afforded by the rule itself.
However the waiver doctrine has never enjoyed a comfortable existence within
the wider body of privilege rules. Its name is something of a misnomer, as the
doctrine as it is found in this area of law contains almost none of the elements of
waiver as it is found in other areas of the law. ‘Waiver’ in privilege law, far from
representing a coherent and unified rule or set of rules governing the
relinquishment of the protection of the privilege, instead is an unhelpful and
misleading term that has been applied to cover a diverse range of rules under which
the privilege is displaced for reasons that include broad and disparate fairness
concerns. What has been sorely needed for some time is some unifying logic under
which at least parts of the ungainly waiver doctrine may be gathered and organised,
and hopefully related back to the substantive principle.2
Other jurisdictions such as Australia and the American federal court system have
started to bring some order to this confusion by developing a broad rule of ‘putting
in issue’ waiver based on generalised concerns for fairness between the parties.
This rule holds that a party cannot put a matter in issue in litigation and at the same
time use the privilege to deny to their opponent the very evidence that would
determine that issue.
In England this issue has arisen in a variety of contexts, from challenges to
limitation bars to pleas of inadequate or insufficient legal advice. However for
some reason the most publicised putting in issue cases have been in the field of
ßThe Modern Law Review Limited 2000 (MLR 63:1, January). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.
*Pupil Barrister.
1 This may be compared with, for example, the crime-fraud rule. The latter rule is technically not an
‘exception’ as communications for a criminal or fraudulent purpose are not made in furtherance of a
valid legal relationship and so the privilege never arises in the first place.
2 An attempt at restructuring these principles has been made by the author in Legal Professional
Privilege: Theory and Practice (Oxford: Hart, 2000) chapters 10 and 11.

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