Legal Professional Privilege and the Ascertainment of Truth

Published date01 May 1990
AuthorAdrian Zuckerman
DOIhttp://doi.org/10.1111/j.1468-2230.1990.tb01820.x
Date01 May 1990
May
19901
Legal Professional Privilege
Legal
Professional Privilege and
the
Ascertainment of
Truth
Adrian
Zuckerman
*
In the last few years the courts have stretched legal professional privilege to the point
of a break with the needs of the administration justice. In one case it was held that where
a copy was made of a document which was not itself privileged, the copy became privileged
because it was brought about for the purpose of submission to counsel. In another case
it was held that where a privileged document had been inadvertently disclosed to the opponent
in discovery proceedings, the party who made the disclosure could obtain an injunction
to prevent its use in evidence. Both these decisions have now been severely curtailed.
In
Dubai Bank Ltd
v
Galadari
I
the defendants had at some point a dispute with one
of their employees. A copy of the employee’s affidavit was sent to the defendants who,
in turn, submitted it (or a copy thereof) to their solicitors for advice on the dispute which
was subsequently settled. In unrelated proceedings brought by the plaintiffs against the
defendants, the latter claimed legal privilege in respect of the copy of the affidavit in the
hands of their solicitor. The defendant relied on
R
v
Board
of
Inland Revenue, ex p
Goldberg
*
where the first of the above mentioned rules was embraced. The merit of this
decision has now been shown for what it is. In
Dubai Bank
it was unclear whether the
copy in the hands of the defendants’ solicitors was the very copy that the defendants had
received from their employee, in which case there would be no privilege, or a copy of
the copy made by them for submission to their solicitors, in which case
it
would
be
privileged
according to
Ex parte Goldberg.
Dillon
W
found it ‘incredible that the line of privilege
should depend on such a fine distinction.’3
The authorities on which
Ex parte Goldberg
rested were examined in
Dubai Bank
and
found ~anting.~ The Court of Appeal has now ruled that where an original document in
the hands of a person is not privileged, a copy thereof made for the purpose of obtaining
legal advice could not be privileged either. In
so
deciding the Court of Appeal has not
only reversed a rule that threatened to bring legal professional privilege into disrepute,
but has also removed temptation for underhand practices. For, as Channel1 QC observed
in argument in
Chadwick
v
Bowman,s
‘all that a party would have to do would be to
destroy the original documents that would be evidence against him, having previously
made copies, and then he could evade inspection alleging the copies were made for the
purposes of the action’.
There is, however, one comer of this
area
which has been left untidy. In
Exparte Goldberg
Watkins
LJ
relied on
Watson
v
Cammell Laird
&
Co
(Shipbuilders and Engineers) Ltd
where the plaintiff sued the defendant in respect of an accident. The defendant’s solicitors
obtained copies of hospital records concerned with the plaintiffs treatment. The Court
of Appeal decided that the copies were privileged notwithstanding that the originals could
be obtained from the hospital by a
subpoena duces tecum.
This decision seems to have
*University College, Oxford.
1
2
3
4
[1989] 3 All ER 769.
[1988] 3 All ER 248.
[1989] 3 All ER 769, 772.
For an analysis of these authorities, see my comments in [1988] All ER Review 135. Watkins
U’s
understanding of authority in
Erparte Goldberg
was excused in
Dubai
Bank
on the grounds that he had
been distracted by Lord Denning MR’s judgment in
Butts
Gas
and
Oil
Co
v
Hammer
(No
3)
[
19801
3
All ER 475. Although the Master of the Rolls may have arrogated
to
himself greater freedom with authority
than was due
to
him, he must be given credit for asserting the very rule that is now embraced by the
Court of
Appeal;
see [1980]
3
All ER 475, 484.
[1959] 2 All ER
757.
5
(1886) 16 QBD 561.
6
381

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