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Privilege What Is It?

Written by Riyaz Jariwalla on 26 September 2008

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Litigation privilege relates to communications when litigation is pending or in contemplation and where the sole or dominant purpose of the communications is the obtaining of legal advice or conducting the litigation (Waugh v British Railways Board [1980] AC 521). The burden of establishing privilege lies on the party claiming it.

A fundamental right at common law that entitles a litigant to withhold certain evidence during the course of judicial and quasi-judicial proceedings.

There are two types:

(1) Legal advice privilege (confidential communications between lawyers and their clients made for the dominant purpose of seeking or giving legal advice).

(2) Litigation privilege (confidential communications between lawyers and their clients, or the lawyer or client and a third party, which come into existence for the dominant purpose of being used in connection with actual or pending litigation).

NOTE: Legal advice privilege protects confidential communications between client and lawyer, made for the dominant purpose of seeking or giving legal advice. Unlike litigation privilege (see below), it does not protect communications between the client or lawyer and a third party, such as a witness or an expert.

The doctrine of privilege is a fundamental pillar of the English legal system. Communications that are protected by privilege need not be disclosed in legal proceedings or before a tribunal exercising judicial or quasi-judicial functions. However, the question as to what documents can and cannot be relied on in court by reason of privilege continues to pose problems and a number of recent decisions have caused consternation among both lawyers and their clients. In addition, there is growing debate as to the impact of the Human Rights Act 1998 (HRA) on the protection afforded by privilege. This article examines recent developments relating to the "without prejudice" rule, the doctrine of legal professional privilege and the potential impact of the HRA.

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