ISSUE 54 EWJ web - Journal - Page 36
with the public prosecutor, and it was accepted that
communications for the purposes of public relations
did not attract legal advice privilege. Consequently,
the Court was satisfied, that legal advice privilege had
not been wrongly claimed.
The notion that litigation privilege may be claimed by
a non-party, as privilege belonging to them rather
than a litigant, seems novel. In practice, its effect is limited because legal advice privilege is already available
to non-parties in such circumstances, and so the question of litigation privilege would only arise where the
non-party or their lawyer communicates with third
parties for the purposes of obtaining evidence or information. Moreover, the Court made clear that a
non-party would need to have “sufficient interest” in
the litigation. This was not explored further but
rather, as always with privilege, left to a case-by-case
determination.
Clyde & Co commentary
It is arguable that this judgment has established a less
restrictive interpretation of the evidential threshold
for when the iniquity exception is potentially engaged,
and expanded the scope of the iniquity exception by
clarifying one particular aspect of its application. However, it is doubtful as to whether this will lead to the
exception appearing in more applications for disclosure. The reality is that the iniquity exception is rarely
invoked and when it is, it is rarely successful because a
prima facie case of iniquity cannot in practice be made
out.
Finally, the Court did not explain whether such
privilege could extend beyond witnesses of fact to expert witnesses. However, such an extension seems
more problematic and improbable because of the expert’s requirement of independence and duty to the
court. The expert’s obligations to the court, including
disclosure of information, do not appear readily compatible with any notion that the expert might have a
separate personal interest in the litigation that could
give rise to a claim for litigation privilege.
This judgment is a helpful clarification of key elements
of legal professional privilege as set out above. However, the assertion that legal advice privilege would not
attach to any document created as part of a purely investigative role, divorced from the role of a lawyer,
seems unclear without an example of when such a scenario would arise. It maybe that the Court was referring to scenarios where lawyers are engaged in a
commercial capacity, however in reality it is likely that
lawyers will always assert that they are applying their
legal expertise to whatever work they do.
Authors:
Tim Crockford
Partner
Andrew Forsyth
Of Counsel
www.clydeco.com
Mr Dawson is a Consultant Urologist with over 26 years’ experience.
He has formal training in personal injury and medical negligence reporting
and completed the Bond Solon Expert Witness Course in 2006. In 2008
he completed a Diploma in Law at the College of Law in Birmingham.
Mr Dawson has over 19 years of medico legal report writing and expert
witness work and has completed over 1670 reports, He has completed
numerous Fitness to Practise reports for the General Medical Council.
He is the author of the ABC of Urology, now in its 3rd edition, and also co-edited the Evidence
for Urology which won first prize in the urology section of the BMA Medical Book Competition
in 2005.
Mr Dawson is happy to accept instructions for personal injury, clinical negligence and condition
and prognosis reports.
M: 07711 584939
E: expertwitness@chrisdawson.org.uk
EXPERT WITNESS JOURNAL
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APRIL 2024