Litigation Privilege: Transient or Timeless? Blank v Canada (Minister of Justice)
| Author | James Goudkamp |
| DOI | 10.1350/ijep.2007.11.4.322 |
| Published date | 01 October 2007 |
| Date | 01 October 2007 |
| Subject Matter | Article |
CASE NOTE
LITIGATION PRIVILEGE:BLANKvCANADA
Litigation privilege: transient or
timeless? Blank vCanada (Minister
of Justice)
By James Goudkamp*
Visiting Fellow, Faculty of Law, University of Wollongong
itigation privilege has become unfashionable. It is under attack on
multiple fronts throughout the common law world.1In the United
Kingdom, perhaps the most notable inroad on the privilege is that made
by the House of Lords in Re L (A Minor) (Police Investigation: Privilege).2In that case it
was held that the privilege is an incident of adversarial proceedings and that,
consequently, it did not obtain in respect of material generated for the purposes of
proceedings that were not predominantly adversarial in nature. There are signs
that more radical restrictions are to come. In Three Rivers District Council vGovernor
and Company of the Bank of England (No. 6) Lord Scott of Foscote foreshadowed that a
fundamental reconsideration of litigation privilege may be necessary.3
In Australia, the Federal Court in AWB Ltd vCole followed the decision of the House
of Lords in Re L and held that documents brought into existence for the purposes
of proceedings before a Royal Commission do not attract the privilege as such
proceedings lack some of the central features of adversarial litigation.4Another
notable development is the lifting of the privilege from experts’ reports in
Queensland5and South Australia.6It seems that further incursions into litigation
322 (2007) 11 E&P 322–328 E & P
1 See Richard Mahoney, ‘Reforming Litigation Privilege’ (2001) 30 Common Law World Review 66 at
69–76.
2 [1997] AC 16.
3 [2005] 1 AC 610 at [29]; cf. at [53], per Lord Rodger of Earlsferry.
4 (2006) 152 FCR 382 at [158]–[164].
5 Uniform Civil Procedure Rules 1999 (Qld), r. 212(2) (see Parr vBavarian Steak House Pty Ltd [2001] 2 Qd
R 196; Mitchell Contractors Pty Ltd vTownsville-Thuringowa Water Supply Joint Board [2005] 1 Qd R 373).
6 Supreme Court Rules 2006 (SA), r. 160(1).In the United Kingdom, Lord Woolf, in his Interim Report
on Access to Justice, recommended removing litigation privilege from communications with
experts (Access to Justice: Interim Report to the Lord Chancellor on the Civil Justice System in England and
Wales, Recommendation 108 (HMSO: 1995)). This recommendation received a predictably hostile
response from the profession and was dropped (see Access to Justice: Final Report to the Lord Chancellor
on the Civil Justice System in England and Wales, [13.31]–[13.32] (HMSO: 1996). However, a small dent in
L
* Email: james.goudkamp@magd.ox.ac.uk. The author is grateful to Professor Adrian Zuckerman
and Roderick Bagshaw for their helpful comments on a draft of this case note.
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