PRIVILEGES IN GENERAL

‘Evidential privileges’ in English law confer upon the privilege holder immunity against legal compulsion to supply information, whether at trial or at some other stage of the legal process.

The duty to disclose confidential information, unless it is privileged, is noted in the preceding chapter, at 11.32 ff. As for confidentiality in general, the Court of Appeal has recently reviewed this topic in Imerman v. Tchenguiz (2010: also on that case 14.66 ff), and there are several leading treatises. The main point here is that not all confidential information is privileged. For example, confidential discussion between a person and a priest or religious advisor, or between a patient and doctor, and in many other professional relationships, is undoubtedly subject to legal protection through injunctions and pecuniary relief. But the holder of those types of confidentiality cannot invoke privilege if ordered by the court to give evidence or produce documents relating to this information. In short, privilege is confidentiality admitted to a higher level of legal protection; but not all confidential relations are raised to that level.

DISCLOSURE AND DISPUTED CLAIMS TO PRIVILEGE

The procedure governing a challenge to a claim to privilege was examined by Beatson J in West London Pipeline and Storage Ltd v. Total Oil UK Ltd (2008). This and related cases are examined at 11.40 ff.

LEGAL ADVICE PRIVILEGE

NATURE OF LEGAL ADVICE PRIVILEGE

Undoubtedly the most important of the family of privileges, legal advice privilege operates as an absolute protection because: (i) it cannot be disapplied by exercise of judicial discretion (see the next paragraph); and (ii) unless this privilege is waived by a privilege holder (or his authorised agent), protection endures beyond the immediate occasion or context of the privileged communications. The party cannot be called to give evidence of, or produce any document containing details of, confidential discussion between a client and a lawyer concerning the law and its application. In the United States it is known as ‘attorney–client’ privilege (Upjohn Co v. United States, 1981).