Legal Professional Privilege And Third Parties
| Date | 01 November 1974 |
| Author | J. D. Heydon |
| Published date | 01 November 1974 |
| DOI | http://doi.org/10.1111/j.1468-2230.1974.tb02406.x |
THE
MODERN
LAW
REVIEW
Volume
37
November
1974
No.
6
LEGAL PROFESSIONAL PRIVILEGE AND
THIRD PARTIES
THE
recent and controversial decision in
Butler
v.
Board
of
Trade
has raised the issue of how far legal professional privilege can be lost
by a third party learning of a confidential communication
or
obtain-
ing a confidential document. The plaintiff sought a declaration that
the Board of Trade was not entitled in criminal proceedings in which
the plaintiff was the accused to adduce in evidence a copy of a
privileged letter from his solicitor.
Goff
J.
held that though there is
no privilege for copies of privileged documents, there is jurisdiction
to restrain production of such copies because they contained confi-
dential information, at least in private prosecutions and civil litiga
tion. In public prosecutions, however, the interests of the State
prevail over the individual’s property interests
so
that then the
documents must be disclosed. What effect will this have on the
traditional rules relating to the loss of legal professional privilege,
and how justifiable are these rules
?
Cross states the privilege thus
:
((
Communications passing
between a client and his legal adviser together, in some cases, with
communications passing between these persons and third parties
may not be given in evidence without the consent of the client if
they were made either
(1)
with reference to litigation that was
actually taking place
or
was in the contemplation of the client,
or
(2)
if they were made to enable the client to obtain,
or
the adviser
to give, legal advice.”
a
But
a
third party may give evidence of a
privileged document if ha takes a copy of
it
or
steals
it
or
sees it
or
is given
it
by the legal adviser
“;
and the same is true if a third
party overhears a privileged communication
or
is told of it by the
1
19711
Ch.
680;
see
C.
Tapper,
”
Privilege
and
Confidence
”
(197’2)
35
M.L.R.
is.
a
EGdence
(3rd
ed.),
p.
NO.
3
Calcraft
v.
Guest
18081
1
Q.B.
750.
4
Lloyd
v.
Mostyn
[1842)
10
M.
&
W.
476, 481
pcr
Parke
13.
6
Butler
v.
Board
of
Trade
[1971] Ch.
F80.
fiIill8
V.
Oddy
(I&%)
6
c.
83
P.
728.
601
VOL.
37 (6)
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