Day 262 - 13 Jun 96 - Page 47


     
     1        Bingham L.J. (as he then was), at page 611 at the top,
     2        letter A.
     3
     4             "The expression 'legal professional privilege'
     5             is unhappy, because it falsely suggests a
     6             privilege enjoyed by the legal profession when
     7             it truth it is not the legal profession but the
     8             client who enjoys the privilege.  It also
     9             suggests, surely wrongly, that a litigant in
    10             person is denied, in preparing his litigation,
    11             the protection of secrecy which is enjoyed by a
    12             litigant who instructs a lawyer."
    13
    14        My Lord, that is a very important and, I would respectfully
    15        submit, entirely correct observation, when one thinks about
    16        what is the reason of public policy which underlies
    17        litigation privilege, namely, that one has a right to
    18        prepare one's case for litigation in complete secrecy and
    19        concealment from the opposite party, remembering always the
    20        powers of adversarial procedure.  So it must follow, as
    21        Bingham L.J. says, that a litigant in person enjoys exactly
    22        the same rights, though no lawyer is or ever could be
    23        involved in consideration of the material which is obtained
    24        in contemplation of the litigation, whether by way of claim
    25        or defence.
    26
    27        Bingham L.J. goes on:
    28
    29             "The expression 'litigation privilege', which
    30             has also and perhaps increasingly been used,
    31             avoids that objection but is itself open to
    32             objection that it suggests a privilege
    33             pertaining to litigation, whereas it is clear
    34             that the privilege covers communications between
    35             the client and his agent and his professional
    36             legal adviser even when no litigation is pending
    37             or contemplated.  I shall therefore continue to
    38             use the traditional term of art while
    39             acknowledging its defects.
    40
    41                  "The doctrine of legal professional
    42             privilege is rooted in the public interest,
    43             which requires that hopeless and exaggerated
    44             claims and unsound and spurious defences be so
    45             far as possible discouraged, and civil disputes
    46             so far as possible settled without resort to
    47             judicial decision."
    48
    49        For obvious reasons, my Lord, I stress those words.
    50 
    51             "To this end it is necessary that actual and 
    52             potential litigants, be they claimants or 
    53             respondents, should be free to unburden
    54             themselves without reserve to their legal
    55             advisers, and their legal advisers to be free to
    56             give honest and candid advice on a sound factual
    57             basis, without fear that these communications
    58             may be relied on by an opposing party if the
    59             dispute comes before the court for decision.  It
    60             is the protection of confidential communications

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