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
