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.
