Legal professional privilege

2019 SCMR 1704 HIGH-COURT-OF-AUSTRALIA Judicial Precedent

History of the doctrine of legal professional privilege stated.

2019 SCMR 1704 HIGH-COURT-OF-AUSTRALIA Judicial Precedent

Legal professional privilegeScope

Equity would restrain an apprehended breach of confidential information and would do so with respect to documents which were the subject of legal professional privilege and which were confidential

Equity would restrain third parties if their conscience was relevantly affected.

2019 SCMR 1704 HIGH-COURT-OF-AUSTRALIA Judicial Precedent

Scope and significanceLegal professional privilege was described as a right which was fundamental to persons and to the legal system

Said privilege was a practical guarantee of fundamental, constitutional or human rights; it was not merely an aspect of curial procedure or a mere rule of evidence but a substantive right founded upon a matter of public interest

Legal professional privilege promoted the public interest because it assisted and enhanced the administration of justice by facilitating the representation of clients by legal advisers

By keeping secret their communications, the client was encouraged to retain a lawyer and to make full and frank disclosure of all relevant circumstances to the lawyer.

2013 SCMR 403 SUPREME-COURT-OF-UK Judicial Precedent

Communication between counsel and clientLegal professional privilegeScope

Where legal professional privilege was attached to a communication between a legal adviser and a client, the client was entitled to object to any third party seeing the communication for any purpose, unless the client had agreed or waived its right; or a statute provided that the privilege could be overridden; or the document concerned was prepared for, or in connection with, a nefarious purpose, or one of a few miscellaneous exceptions applied.

2013 SCMR 403 SUPREME-COURT-OF-UK Judicial Precedent

Communication between counsel and clientLegal professional privilegeLegal advice privilegeScope

Legal advice privilege applied to all communications passing between a client and its lawyers, acting in their professional capacity, in connection with the provision of legal advice, i.e. advice which related to the rights, liabilities, obligations or remedies of the client either under private law or under public law.

2013 SCMR 403 SUPREME-COURT-OF-UK Judicial Precedent

Communication between counsel and clientLegal professional privilegeLegal advice privilegePurpose

Legal advice privilege was based on the need to ensure that a person could seek and obtain legal advice with candour and full disclosure, secure in the knowledge that the communications involved could never be used against such a person

Legal advice privilege was conferred for the benefit of the client, and might only be waived by the client; it did not serve to protect the legal profession

Legal advice privilege existed to ensure that there was full and frank communication between attorneys and their clients, which promoted broader public interests in the observance of law and administration of justice

Principle that communications between clients and lawyers, whereby the clients were hoping for the assistance of the lawyers' legal skills, should be secure against the possibility of any scrutiny from others, whether the police, the executive, business competitors, inquisitive busybodies or anyone else was founded upon the rule of law.

2013 SCMR 403 SUPREME-COURT-OF-UK Judicial Precedent

Legal professional privilegeLegal advice privilegeScopeChartered accountant giving legal advice to a company/client in relation to a tax avoidance schemeTax inspector serving notices on company to produce certain documents relating to its tax affairs

Company refusing to disclose said documents on the ground that same related to legal advice given by the chartered accountant, therefore, they were covered by legal advice privilege

Question as to whether legal advice privilege applied to legal advice given by a professional other than a member of the legal profession

Appellant-company challenged validity of notices served by tax inspector by filing an application for judicial review

High Court rejected application for judicial review on the ground that, although the disputed documents would have attracted legal advice privilege if the advice in question had been sought from, and provided by, a member of the legal profession, no such privilege extended to advice, even if identical in nature, provided by a professional person who was not a qualified lawyer

Court of Appeal upheld the decision of the High Court

Validity

Main issue in the present appeal was whether legal advice privilege should attach to communications passing between chartered accountants and their client in connection with expert tax advice given by the accountants to their client, in circumstances where legal advice privilege would attach to such communications if the same advice was being given to the same client by a member of the legal profession

Universal belief was that legal advice privilege only applied to communications in connection with advice given by members of the legal profession

Legal advice privilege should not be extended to communications in connection with advice given by professional people other than lawyers, even where that advice was legal advice which that professional person was qualified to give

Various laws made by Parliament also implied that legal advice privilege was limited to advice given by lawyers

Allowing present appeal filed by appellant-company would amount to extending legal advice privilege beyond what were currently, and have for a long time been understood to be, its limits

Extending legal advice privilege to any case where legal advice was given by a person who was a member of a profession which ordinarily included the giving of legal advice would likely lead to a clear and well understood principle becoming uncertain, because it would be unclear as to which occupations would be members of a profession for such purpose

Further it was also unclear as to how a court would decide whether a profession was one which ordinarily included the giving of legal advice

Where professionals, other than members of the legal profession, give legal advice, it will often not represent the totality of the advice, and it might be difficult to resolve, as to whether, and, if so, in respect of which documents, legal advice privilege could be claimed

Difficulties might also arise in deciding how to deal with documents which contained legal and non-legal advice

Question as to whether legal advice privilege should be extended to cases where legal advice was given from professional people who were not qualified lawyers raised questions of policy which should be left to the Parliament, with its wide powers of inquiry and consultation and its democratic accountability

Extension of legal advice privilege to professions other than lawyers might only be appropriate on a conditional or limited basis, which could be properly considered and implemented by Parliament, and could not appropriately be assessed, let alone imposed, by the courts

Appeal was dismissed accordingly.