The Future of Legal Professional Privilege

AuthorColin Passmore
Published date01 March 1999
Date01 March 1999
DOI10.1177/136571279900300201
Subject MatterArticle
The
future
of
legal
professional
privilege
By
Colin
Passmore
Simmons
and
Simmons,
Solicitors
This
article
examines,
by
reference
to
recent
English case
law
and
statutory
developments,
whether
the
protection
traditionally
afforded
litigants
by legal
professional
privilege is
under
threat.
To
attempt
to
run
this
argument
is
not
to
suggest
that
the
judiciary
and
Parliament
are
engaged
in
an
informal
conspiracy
to
undermine
this
long-standing
rule
of
evidence. Rather, it
springs
from
the
identification
of
a
conflict
of
policy
between,
on
the
one
hand,
the
more
open
(or
cards
on
the
table)
approach
to English civil
litigation
procedure
exemplified
in
the
'Woolf'
reforms;
and,
on
the
other,
the
'fundamental'
(see below)
rule
that
allows a
man
to
consult
his lawyer safe
in
the
knowledge
that
their
communications
are,
subject
to well-known
but
limited
exceptions,
sacrosanct.
The
pursuit
of
this
argument
is
perhaps
remarkable
given
that
the
House
of
Lords
reaffirmed
the
largely
inviolable
nature
of
privilege as
recently
as 1995
in
R v
Derby
Magistrates
Court,
ex parte B.1Yet a series
of
decisions since
then
suggests
that
not
all
members
of
the
judiciary
view privilege
in
quite
the
emphatic
terms
used
in
Derby
Magistrates.
Further,
certain
legislative
provisions, to
date
largely
unused,
could,
if
more
frequently
used,
see
further
inroads
into
privilege.
Hopefully,
these
thoughts
will
encourage
the
beginnings
of
a
wider
debate
on
the
future
of
privilege
and
so avoid, as
this
article
concludes
is
presently
the
case, a piece-meal
chipping
away
at
privilege to
meet
the
facts
of
particular
cases.
~9611
AC 487.
THE
INTERNATIONAL
JOURNAL
OF
EVIDENCE
&
PROOF
71
THE
FUTURE
OF
LEGAL
PROFESSIONAL
PRIVILEGE
Some
basics
This
article
is
concerned
only
with
legal
professional
privilege. Currently,
this
rule
allows a
party
to
judicial
proceedings" to
withhold
from
the
tribunal
and
the
opposing
party
communications
between
that
party
and
his legal advisers
in
which
legal advice is
sought
and
given;
and
communications
between
that
party
or
his legal adviser
and
a
third
party
which
are
made
for
the
dominant
purpose:'
of
use
in
legal
proceedings
(whether
or
not
the
instant
proceedings
).4
Privilege has existed in English
law
for over 400 years. The
authoritative
survey
of
its
development
contained
in Lord Taylor C]'s speech in
Derby
Magistrates
mentions
two decisions
handed
down
in 1577
and
in
1579 in
which
privilege was first successfully asserted." Its
unique
nature,
in
the
sense
that
it is
only
available in
respect
of
confidences
reposed in
lawyers-as
opposed
to medics
and
clergymen-was
confirmed
in 1792
in
Wilson vRastall.6
Buller
]'s
judgment
in
that
decision
is
notable
for his evocative
description
of
the
effect
of
privilege: '[The lawyer's]
mouth
is
shut
forever.' Soon after, in
Greenough
v
GaskelF
in 1833, privilege was
extended
from
its origins as a
litigation
privilege to cover 'advice' privilege." This was an
important
decision
in
which
Lord
Brougham
LC
famously
articulated
the
rationale
of
privilege as
being:
...
a
regard
to
the
interests
of
justice
which
cannot
be
upheld
and
to
the
administration
of
justice
which
cannot
go
on
without
the
aid
of
men
skilled in
jurisprudence,
in
the
practice
of
the
court
and
in
those
matters
which
form
the
subject
of
all
judicial
proceedings."
~
Parry-jones
vLaw Society [19691 1 Ch 1
and
Privilege (by
the
author,
published
by
Central
I
L~w
Publishing:
London,
1998) at 9. If
the
proceedings
are
not
'judicial'
or
'quasi-judicial'
in
character
such
as
the
procedure
pursuant
to
Solicitor
Trust
Account
Rules
whereby
the
Law
Society
sought
to
inspect
documents
relating
to Mr
Parry-jones'
clients'
affairs,
then
a
solicitor
cannot
assert
his
client's
privilege
in
response
to
the
Law Society's
demand
for
relevant
documents
under
those
rules.
3See infra n. 26.
4Necessarily,
this
is a very
brief
summary
of
the
scope
of
privilege: a
detailed
elaboration
can
be
found
in Privilege, supra n. 2, chs 2
and
3.
5Supra n. 1at
504.
6 (1792) 4
Durn
&E 753.
7 (1833) 1 My &K 98.
8
That
is, advice on
any
legal
matter,
irrespective
of
whether
litigation
is
contemplated.
9 Supra n. 7at 103.
72
THE
INTERNATIONAL
JOURNAL
OF
EVIDENCE
&
PROOF

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