PRIVILEGE
PRIVILEGED RELATIONSHIPS - GENERAL PRINCIPLE
(a) a person entitled to claim privilege ma refuse to answer the Q put or disclose the document sought
(b) if person entitled to claim privilege fails to / waives privilege, no other person may object (privilege is that of witness NOT parties)
(c) party seeking to prove particular matter in relation to which his opponent / a witness claims privilege is entitled to prove matter by other evidence, if available
(d) no adverse inferences may be drawn against party / witness claiming privilege
PRIVILEGE AGAINST SELF INCRIMINATION
the rule
no one is bound to answer any Q or produce any document or thing if would have a tendency to expose him or his spouse to proceedings for a criminal offence or recovery of a penalty (s14 Civil Evidence Act)
must create a real and appreciable risk of a criminal charge
to whom does the rule apply?
only the person claiming privilege
NOT to W's spouse
companies may be covered
exceptions where privilege CANNOT be claimed
express statutory exceptions
does NOT protect D from answering Qs in current proceedings
civil proceedings for recovery / administration of property for execution of a trust / for account of property / dealings with property under Theft Act
certain prosecutions under Fraud Act (generally breach of fiduciary duty)
certain prosecutions under Insolvency Act
s98 of Children Act - proceedings re: case, protection and supervision of children
certain proceedings under Banking Act 1987
implied statutory exceptions
privilege impliedly abrogated if power created by statute otherwise ineffective
material obtained from D under compulsion but which exists independent of D's will e.g. documents acquired by warrant, bodily samples (breath, blood etc)
LEGAL PROFESSIONAL PRIVILEGE
Legal advice privilege
protects solicitorclient communications made for giving or receiving legal advice, sought or given in a relevant legal context + for a non-dishonest purpose (objective test)
belongs to client BUT solicitor under duty to assert (i.e. must refuse to disclose) unless client waives
rationale: candid stating of facts without fear of compulsory disclosure
applies to:
communications whose primary object = actual / contemplated civil / criminal proceedings + conclusions from such...
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