10. Privilege and public interest

Legal professional privilege has two limbs. Legal advice privilege covers confidential communications between client and lawyer for the purpose of giving or receiving legal advice. Litigation need not have started, and need not be in prospect. Greenough v Gaskell is the authority. Litigation privilege covers communications, and documents, whose dominant purpose is submission to a legal adviser for pending or contemplated litigation. Waugh v British Railways Board is the dominant-purpose case. A railwayman's widow sued after a fatal collision. An internal report had been prepared partly for safety and partly for the board's lawyers. Litigation was not the dominant purpose, so the report was not privileged. Wheeler v Le Marchant is the older illustration. Reports from a surveyor, obtained when litigation was not in contemplation, were not privileged.

R v Derby Magistrates' Court, ex parte B states why the privilege is absolute. A man had been acquitted of murder after changing the account he gave his solicitors. A later suspect wanted those instructions. The House of Lords refused. Lord Taylor of Gosforth said a client must be able to consult his lawyer in confidence, or he will hold back the truth and the advice will be useless. The privilege covers solicitors, barristers, in-house lawyers and foreign lawyers, the instructions, and copies made for the purpose of taking advice. It belongs to the client. Only the client can waive it. It survives the client's death and binds successors in title. Once privileged, always privileged.

What is not privileged is as important. The identity of the client, and other facts, are not privileged merely because a lawyer knows them. A document that already existed does not become privileged because it is later handed to a lawyer. A communication that is partly advice and partly a record of fact is looked at as a whole. Balabel v Air India is the case: the privilege covers what is necessary to give the advice, in the continuum of the correspondence, but it is still a privilege for legal advice.

There is no privilege here for a priest and a penitent, a doctor and a patient, or a journalist and a source. The exceptions to legal professional privilege are crime or fraud, non-adversarial proceedings about the welfare of a child, a dispute between the client and the lawyer himself, and statutes that override the privilege, including anti-money-laundering legislation. R v Cox and Railton is the fraud case. A solicitor was consulted to put through a sham bill of sale and defeat a creditor. Communications in furtherance of a crime or a fraud are not protected. Crescent Farm (Sidcup) Sports Ltd v Sterling Offices Ltd is the civil companion.

A stranger who already has the document is in a different position from the client. The client can still refuse to produce his own copy. He cannot, by the privilege alone, stop the stranger from putting a copy in evidence. Calcraft v Guest is the leading case, on copies of title documents to a fishery. R v Tompkins applied it to a note the accused had dropped on the floor of the court, which was then used in cross-examination. R v Cottrill applied it to a statement that reached the prosecution without the client's consent, and was used as a previous inconsistent statement.

The privilege against self-incrimination is narrower than people assume. Blunt v Park Lane Hotel states it. No one is bound to answer a question if the judge thinks the answer would tend to expose the witness, or the witness's spouse, to a criminal charge, penalty or forfeiture which the judge regards as reasonably likely. The witness must claim it. If he answers without claiming it, the answer can be used later. It does not cover ordinary civil liability, and forfeiture is obsolete in practice. It does not apply to an accused who gives evidence about the offence with which he is charged. The Criminal Evidence Act 1898 draws that limit. The court, not the witness's assertion, decides whether there is a reasonable probability of a charge. In AT&T Istel Ltd v Tully the privilege did not justify a refusal to disclose dealings with money and assets under a court order, where the disclosure was fenced so that it could not be used in a criminal prosecution. Some statutes override the privilege in terms.

Public interest immunity is not a privilege of a party. It is a duty to withhold material whose disclosure would harm the public interest. The categories are national security, diplomatic relations, the proper working of the public service, the detection of crime, and the identity of informers. Duncan v Cammell Laird is the case. After the submarine Thetis sank on trials, the families wanted the plans and the navy's documents. The House of Lords treated a ministerial certificate, that disclosure would injure national security, as conclusive. The Constitution of Sierra Leone 1991 recognises that material may be withheld in the public interest.

Without prejudice is a rule of public policy about settling civil disputes. A genuine offer to compromise, and the negotiations around it, cannot be put in evidence without the consent of both parties. The offer is not treated as an admission of liability. The label "without prejudice" does not protect a letter that is not a real attempt to settle. A threat, or a statement of fact made with no proposal to compromise, can be proved.