Privilege may be divided in three different forms, namely
legal professional privilege which concerns the confidentiality of
communications between legal advisers and clients or between legal advisers
and/or clients and third parties. Secondly the without the prejudice rule which
encourages negotiations for the purpose of resolving disputes and the privilege
against self incrimination which gives a person the right to claim it to refuse
to answer incriminating questions or to produce incriminating documents for
inspections.
The three forms of privilege referred to above all, where they
apply, give a party to legal proceedings the right to refuse to answer questions(
Kennedy v Lyell (1883)23 Ch D 387) or to produce documents (CPR 31.3(1) (b) and
CPR 31.19). The privilege may also be claimed to prevent the court , under CPR
18.1(1), either from ordering a party to clarify matters in dispute or from
ordering a party to give additional information in relation to such matters (
CPR 18.1(2) ).
Why does privilege apply for lawyers and not other
professional bodies?. One of
the main reasons to give the privilege to lawyers is that they play a dual role
in that they are not just a private advisor, but because Lawyers have a public function, as
officers of the Court .
However it has always been recognized that there is a need to
confine or place limits on this privilege. The most quoted statement of this
sentiment is that of Wigmore: "[It] is worth preserving for the sake of a
general policy, but it is nonetheless an obstacle to the investigation of the
truth. It ought to be strictly confined within the narrowest possible limits".
Could it be that is why English courts regard the fact that privilege should
apply only to lawyers and not to other profession such as doctors and patients
or a priest during confession. If , however, they are asked relevant questions about there
communications between them and the other party, they are obliged to answer..
the contents of these confidential communications are not protected from
disclosure.
However there will be circumstances where the judge may excuse
the disclosure by conducting a balance to assess the public interest in
disclosure in the administration of justice against the public interest in
maintaining the confidentiality as in the case of W v Egdell. This
allowed the patient’s own private doctor to breach confidentiality by passing on
his report to certain authorities, against the wishes of the patient. It is
difficult to see why the doctor patient communication of a doctor preparing a
report for a lawyer are protected by the powerful privilege rule, but the same
communications prepared solely for the purposes of treatment are not protected
in a similar manner.
It is submitted that the public function argument is an
insufficient reason for granting lawyers a special rule which is denied to other
professionals with equally important public functions.
Therefore the question needs to be asked as to whether
privilege should be extended to non lawyers. Should judges consider new
exceptions to the privilege rule or whether to leave the position as it is
and leave the matter in the same position as the hearsay rule and any further
rule balancing should undertaken by parliament.
In Woolwich Equitable Building Society V IRC,
Lord Keith in a dissenting judgment said that it was a mistake of Law rule that
" though heavily criticised in academic writing and elsewhere, [it] is in my
opinion too deeply embedded in English jurisprudence to be uprooted judicially.
Another factor which should also be taken into
consideration would be the fact that the role of examination in chief and cross
examination in chief in litigation is for the discovery of the truth but the
failure to disclose the privileged documents or the privileged information may
result in the failure of a case that deserved to succeed or the success of a
case that deserved to fail i.e. a miscarriage of justice.
But the importance in the public interest of allowing people
to take advice from their lawyers in the certain knowledge that the
communications will be inviolate has always been held to be so strong as to
override all other public interest considerations.
*Daniel
Dangeot, was awarded his LL.B. from the University of
Wolverhamption. Completed the Bar
Vocation Course at University of
Northumbria. Mr. Dangeot is currently reading for an LL.M.
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