Day 262 - 13 Jun 96 - Page 48


     
     1             between client and legal adviser which lies at
     2             the heart of legal professional privilege, as is
     3             clear from the classical exposition of the law
     4             by Sir George Jessel M.R. in Anderson v. Bank of
     5             British Columbia.  Without the consent of the
     6             client, and in the absence of iniquity or
     7             dispute between client and solicitor, no inquiry
     8             may be made into or disclosure made of any
     9             instructions which the client gave the solicitor
    10             or any advice the solicitor gave the client,
    11             whether in writing or orally.
    12
    13                  "Even confining oneself to the litigious
    14             field, it is however plain that legal
    15             professional privilege does not end there.
    16             Confidential communications between a party to
    17             litigation or his legal adviser and third
    18             parties for the purpose of the litigation are
    19             without doubt protected from production to the
    20             other party.  So...."
    21
    22        And that means, we submit, so also --
    23
    24             "...are documents prepared for the dominant
    25             purpose of submission to a legal adviser in
    26             connection with actual or anticipated
    27             litigation:  Waugh v. British Railways Board
    28             [1980] A.C. 521."
    29
    30        Can I then go over to a short passage on the next page,
    31        612, just below letter C.
    32
    33             "The courts must not in any way encroach on the
    34             right of a litigant or potential litigant to
    35             seek and obtain legal advice on his prospects
    36             and the conduct of proceedings under the seal of
    37             confidence nor on the right of such a litigant
    38             and his legal adviser to prepare for and conduct
    39             his case without, directly or indirectly,
    40             revealing the effect of that advice.  In
    41             recognition of these rights, perhaps generously
    42             interpreted, proofs of witnesses, whether
    43             factual or expert, and communications with
    44             potential witnesses have been held immune from
    45             production.  But it is hard to see how these
    46             rights are infringed if a party is obliged to
    47             produce an original document which was in
    48             existence before litigation was in the air, and
    49             which a litigant or his legal adviser have
    50             obtained from a third party for purposes of the 
    51             litigation, but which the third party could 
    52             himself be compelled to produce at the trial 
    53             without any possible ground for objection."
    54
    55        My Lord, before I come to the facts of this particular
    56        case, can I notice a short passage in the case of
    57        Societe Francais Hoechst, which I hope your Lordship also
    58        have a copy of?
    59
    60   MR. JUSTICE BELL:  Yes, it is the bit right at the end.

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