Report No. 69

Chapter 68

Legal Professional Privilege

Sections 126-129

I. Introduction

68.1. In our introductory observations about privileges, we referred to the aspect of relationship and stated that, in general, when the law recognises a privilege, it does so on a consideration of public policy for the proper functioning of a relation. This aspect of relationship assumes prominence in a group of sections (sections 126 to 129), dealing with what is commonly known as legal professional privilege. This expression does not quite accurately indicate the nature of the privilege. The privilege is not of the legal profession, but of the client. However, it does arise out of the professional relationship.

68.2. It is necessary to deal with the aspect of confidence when discussing this privilege. In law, a confidential relationship does not, in itself, create a privilege in regard to disclosure by way of evidence in a court of law. Where a communication is made in confidence, and the confidence is regarded as one deserving of legal protection, the legal remedy against violation of the confidence (where available) could assume one of several forms.

There might be a contractual action permitted by the law, for breach of the confidence; there might, in some cases, be the possibility of an injunction being granted by the court; and there might even be criminal prosecution1 if the violation of the confidence is punishable by a specific statutory provision. But the fact that confidence is protected in certain respects, does not necessarily mean that the communication made in confidence will be protected from disclosure in a court of law. For that purpose, specific rule in the law of evidence is required.

68.3. Which of the various remedies is allowed, is a matter of substantive law. In order to distinguish the situation where the remedy is given by substantive law, from the situation where the sanction is contained in the law of evidence, one must bear this aspect in mind.

1. Cf. section 40, Administration of Justice Act, 1970, (infra).

68.4. Examples of equitable doctrine.-

Coming to fields other than the law of evidence, there is in the first place, the developing equitable doctrine that a man shall not profit from the wrongful publication of information received by him in confidence. This doctrine, said to have its origin in Prince Albert v. Strange, 1841 Mad&G 25, has been frequently recognised as a ground for restraining the unfair use of commercial secrets transmitted in confidence. During the development of the bill of discovery in equity, a number of grounds of privilege from discovery came to be accepted.1

1. R.B.L. Prior Confidentiality, (1975) New LJ 920.

68.5. These heads of privilege were reduced considerably in number by the Civil Evidence Act, 1968. The notes to the Supreme Court Practice, 1973, Volume 1, state the three main heads as extending only to documents with legal professional privilege, documents tending to incriminate and documents privileged on the ground that production would be injurious to the public interest. Indeed, in numerous cases in equity, it was accepted that the basis of the first two heads of privilege was to be found in the "well-being of society"1 We are referring to this aspect to show the origin of equitable relief in this field and also to show the approach of equity. So far as legal professional relationship is concerned, there is a broader basis.2

In Coco v. A.M. Clarke Ltd., 1969 RPC 41 (47), referred in A.G. v. Jonathan, (1975) 3 All ER 484, Negarry J., reviewing the authorities, set out the requirements necessary for an action based on breach of confidence to succeed:

"In my judgment three elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself, in the words of Lord Greene. M.R. in the Saltman case,3 must have the necessary quality of confidence about it. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it."

1. Southmark Water Co. v. Quick, 3 QBD 317.

2. See infra.

3. Saltman Engineering v. Campbell, (1963) 3 All ER 413 (415).

68.6. Types of cases.-

The law has shown its determination to protect confidential information in a number of recent cases in England. The majority of these cases have been brought by the owner of the information himself to prevent its use by the defendant to his financial or commercial benefit. Therefore, in some of these cases,1 the court has required, as a condition to granting relief, some detriment to the third party. The detriment, whether expressly required or not, would in all cases, save for exceptional cases like Prince Albert v. Strange, 2 De G&Sm 652, be tangible in form. Sometimes, in these cases, there is a contract which may be said to have been broken by the breach of confidence, but it is clear2, that the doctrine applies independently of contract.3

1. Coco v. A.M. Clark (Engineers) Ltd., 1969 RPC 41 (Megarry, J.).

2. Saltman Engineering v. Campbell, (1903) 3 All ER 413.

3. See-

(a) A.G. v. Jonathan, (1975) 3 All ER 484 (494).

(b) X. (in re:), (1975) 1 All ER 697.

68.7. There may be an implied contractual relationship imposing an obligation of confidence. Unlike the ordinary debtor and creditor relationship, that of bank and customer entails an implied contractual duty on the banks to ensure that confidentiality concerning the condition of customers' accounts is maintained.1

Incidentally, in England, it is an offence by statute to unduly publicise the existence of any debit with the object of concerning the debtor to pay.2 The offence is labelled as the offence of "unlawful harassment".

1. Relvin Williams Privacy and the Private Bank, (1974) New LJ 612.

2. Section 40, Administration of Justice Act, 1970 (English).

68.8. These cases mainly concern business. It is not until the decision in Argyll v. Argyll, (1965) 1 All ER 611 (Ungoed Thomas, J.), that the principle of protecting confidential communications by an independent action was applied to domestic secrets, such as those passing between husband and wife during marriage. It was held in that case that the plaintiff wife could obtain an order to restrain the defendant husband from communicating such secrets, and the principle is well expressed in the headnote in the official Law Reports:

"a contract or obligation of confidence need not be express but could be implied, and a breach of contract or trust or of faith could arise independently of any right of property or contract and that the court in the exercise of its equitable jurisdiction, would restrain a breach of confidence independently of any right at law".

68.9. This extension of the doctrine of confidence beyond commercial secrets has never been directly challenged, and was noted without criticism by Lord Denning M.R. in Fraser v. Evanas, (1969) 1 All ER 8 (10, 11). Incidentally, we may mention that some protection is afforded to correspondence without prejudice.1

1. See section 23.

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