Privilege and Public Interest Immunity

In general, evidence which is relevant to issues in legal proceedings should be admitted. This general principle is qualified by scenarios where certain information is protected from disclosure or where allowing the evidence may be contrary to public policy.

There are three main forms of privilege, that which applies to without prejudice communications, the privilege against self incrimination and the legal professional privilege.

Without prejudice communications occur if there is a genuine attempt to negotiate the settlement of the action. It is good practice to mark such communications with the header "without prejudice" but this will not always be fatal. Likewise heading the letters in such a way does not necessarily mean that they will not be admissible evidence - known as an open letter. The privilege allows both parties to communicate openly, safe in the knowledge that should an agreement not be reached, and civil proceedings be initiated, neither party can rely on the "without prejudice communications", to help strengthen their case. If a settlement is reached then the communications can obviously be used to evidence the agreement.

The privilege against self incrimination can be claimed by anyone when called upon to answer questions or disclose documents, in both criminal and civil cases, if in submitting the relevant information they may incriminate themselves. If the person entitled to claim privilege does not wish to do so, they may waive their right. Where the other party has already got evidence of the matters for which the privilege is claimed, that party can use that evidence.

There are several exceptions to the right by virtue of statute, these include where a person is asked questions in cross examination which may criminate him as regards to the offence that he is charged in the proceedings, and where a person is examined by inspectors of the DTI under the Companies Act 1985.

However the European Convention of Human rights Article 6 provides that where statute removes the protection and does not provide an alterative protection thus compelling a person upon the threat of possible pain or imprisonment to give evidence that is later to be used in criminal proceedings against them then the provision may breach that persons human rights. Thus evidence from investigations of DTI inspectors as to the answers of the accused to their questions can no loner be adduced.

Finally the general rule that there is no general privilege with regard to confidential statements made between a professional person and his client. However legal professional privilege is a major exception to the rule. This attaches to specific communications between lawyer and client, and to certain communications relating to pending or contemplated litigation between lawyer and the client and third parties.

The Police and Criminal Evidence Act 1984 S.10 relating to the limits upon Police powers to search for and seize evidence gives an accurate position of the law. It states that documents will be protected if a) the communications are between lawyer and client for the purposes of giving/receiving legal advice, or b) communications between lawyer and his client and third parties where the dominant purpose is the intended use in pending or contemplated litigation. and that c) items referred to or enclosed in the communications are made in connection with the giving of legal advice or in connection with or in contemplation of legal proceedings and for the purposes of such proceedings. As long as they are not held with the intention of furthering criminal purpose by virtue of subsection 10(2).

The document must have as its dominant purpose either of the purposes in section c) to qualify for the protection.

The client may waive their right to claim the privilege, and if the other party already has documentary evidence in their possession, they may bypass the privilege, unless the claimant is successful in obtaining an injunction against them preventing them from using that evidence.
Public interest immunity entitles a party to civil or criminal proceedings to withhold the disclosure or inspection of documents or refuse to answer the questions put to them. In determining whether or not the claim will be successful the court is required to balance the public interest against disclosure with the public interest in favour of disclosure. The public interest against disclosure may be as regards national security for example. The public interest for disclosure will essentially be that of doing justice in the proceedings. The court has the right to inspect the documents to which the claim arises before it makes its decision.

In contracts with privileges the right cannot be waived as the information it relates to is admissible.

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