(New Zealand) Solicitors resisted requests to disclose papers in breach of legal professional privilege from their professional body investigating allegations of professional misconduct against them.
Held: The appeal was allowed. The protection of legal professional privilege was absolute save only where abrogated by statute. The statute provided that witnesses before the professional tribunal had the same protection as at law, and did not exclude legal professional privilege. It was an essential part of the legal process. Unless waived, ‘once privileged, always privileged’. The privilege is the same whether the documents are sought for the purpose of civil or criminal proceedings, and whether by the prosecution or the defence. A refusal to waive privilege cannot be questioned or investigated by the Court. Save in cases where the privileged communication is itself the means of carrying out a fraud, the privilege is absolute. Once the privilege is established, the lawyer’s mouth is ‘shut for ever’. This case involved a contest between two competing public interests of high importance: the maintenance of the integrity of the legal profession and the administration of justice. No balancing exercise is to be performed: if the lawyer is to be able to give his client an absolute and unqualified assurance that what he tells him will not be disclosed without his consent in any circumstances, the assurance must follow and not precede the undertaking of any balancing exercise.
Lord Hope of Craighead, Lord Hobhouse of Woodborough, Lord Millett, Lord Scott of Foscote, Lord Walker of Gestingthorpe
Times 21-May-2003, [2003] UKPC 38, Gazette 03-Jul-2003, [2003] 2 AC 736, [2004] 4 All ER 269, [2003] 3 WLR 859
PC, Bailii
Law Practitioners Act 1982 (New Zealand) 101(3)(d)
England and Wales
Citing:
Cited – Bolton v Liverpool Corporation HL 1833
The defendant sought to inspect the plaintiff’s instructions to his counsel, though not of the advice which counsel gave.
Held: The application was refused. Lord Brougham said: ‘It seems plain, that the course of justice must stop if such a . .
Cited – Gissing v Gissing HL 7-Jul-1970
Evidence Needed to Share Benefical Inerests
The family home had been purchased during the marriage in the name of the husband only. The wife asserted that she had a beneficial interest in it.
Held: The principles apply to any case where a beneficial interest in land is claimed by a . .
Cited – Regina v Derby Magistrates Court Ex Parte B HL 19-Oct-1995
No Breach of Solicitor Client Confidence Allowed
B was charged with the murder of a young girl. He made a confession to the police, but later changed his story, saying his stepfather had killed the girl. He was acquitted. The stepfather was then charged with the murder. At his committal for trial, . .
Cited – Holmes v Baddeley HL 1844
Discussing professional legal privilege, Lord Lyndhurst said: ‘The principle upon which this rule is established is that communications between a party and his professional advisers, with a view to legal proceedings, should be unfettered; and they . .
Cited – Anderson v Bank of British Columbia CA 1876
Litigation was threatened against an English bank concerning the conduct of an account kept at the branch of the bank in Oregon. The English bank’s London manager thought it necessary to ascertain the full facts and cabled the branch manager in . .
Cited – Southwark and Vauxhall Water Company v Quick CA 1878
The water company sued its former engineer. Anticipating the action, documents were prepared for the company’s solicitor’s advice, though one (a shorthand transcript of a conversation between a chimney sweep employed by the company and the company’s . .
Cited – Pearce v Foster CA 1885
‘The privilege with regard to confidential communications between solicitor and client for professional purposes ought to be preserved, and not frittered away. The reason of the privilege is that there may be that free and confident communication . .
Cited – Wilson v Rastall 18-Jun-1792
Once legal professional privilege is established, the lawyer’s mouth is ‘shut for ever’. . .
Cited – Regina v Special Commissioner And Another, ex parte Morgan Grenfell and Co Ltd HL 16-May-2002
The inspector issued a notice requiring production of certain documents. The respondents refused to produce them, saying that they were protected by legal professional privilege.
Held: Legal professional privilege is a fundamental part of . .
Cited – Black and Decker Inc v Flymo 1991
Legal professional privilege is a right to resist the compulsory disclosure of information. ‘It is not possible to assert a right to refuse to disclose in respect of a document which has already been disclosed. Once the document has passed into the . .
Cited – Bourns Inc v Raychem Corporation; Latham and Watkins (a Firm) CA 30-Mar-1999
Documents disclosed in support an application in a costs taxation, remained subject to implied duties of confidence, and they could not be used for any other purpose, including to support litigation abroad. Where questions of US law arose, a US . .
Cited by:
Rejected – Prince Jefri Bolkiah v KPMG (A Firm) HL 16-Dec-1998
Conflicts of Duty with former Client
The House was asked as to the duties of the respondent accountants (KPMG). KPMG had information confidential to a former client, the appellant, which might be relevant to instructions which they then accepted from the Brunei Investment Agency, of . .
Cited – Three Rivers District Council and others v Governor and Company of the Bank of England (No 6) HL 11-Nov-2004
The Bank anticipated criticism in an ad hoc enquiry which was called to investigate its handling of a matter involving the claimant. The claimant sought disclosure of the documents created when the solicitors advised employees of the Bank in . .
Cited – Burkle Holdings Ltd v Laing TCC 23-Mar-2005
The parties had each instructed the same solicitor, but now disputed the entitlement of the other to see documents held by the solicitor. . .
Cited – Quinn Direct Insurance Ltd v The Law Society of England and Wales CA 14-Jul-2010
Q had provided professional indemnity insurance to a firm of solicitors in which the Law Society had intervened. Claims were made against the firm, but Q declined to pay, saying that the apparently fraudulent activities of the firm fell outside the . .
Cited – Seaton v Regina CACD 13-Aug-2010
The defendant had been accused of recent fabrication of evidence, having given evidence in court which varied from that given in interview on arrest. The crown had commented on his failure to call his solicitor to give evidence. The defendant said . .
Cited – Dawson-Damer and Others v Taylor Wessing Llp and Others ChD 6-Aug-2015
The clamants sought orders under the 1998 Act for disclosure of documents about them by the defendant solicitors and others. The defendants said that the request would require the consideration of a very large number of documents, considering in . .
Cited – ZS v FS (Application To Prevent Solicitor Acting) FD 24-Oct-2017
Discosure of Confidences must be at risk
H sought to restrain W’s solicitors from acting. The firm was one of six firms approached to consider representing H, and he now said that certain matters had been diviluged to the firm.
Held: The legal principles were clear, and it was for H . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 September 2021; Ref: scu.182235