About the Book
In the Commonwealth,the principle of legal professional privilege has been treated as almost sacrosanct and in consequence, derogations from it have been rare. The traditional view is that, despite resulting unfairness, the rule must be absolute in order to achieve its stated goals. This view is challenged here through an examination of the structure of and exceptions to the privilege. Auburn argues that the claims made of the rule in the past have been overstated and that the privilege is more robust than widely assumed. Being dependent on patterns of client behaviour, it can accommodate change, while still fulfilling its essential function. Having examined the theory, structure and main derogations from the privilege, the author asserts that we should be more sceptical of the claims made of the privilege, and in appropriate circumstances should give more weight to the values underlying the disclosure of evidence. This thoughtful analysis presents a new approach to the issue of legal professional privilege.
It offers a thorough exploration of the principles underlying the privilege and takes a Commonwealth-wide approach, covering the law in England, Australia, Canada, New Zealand and South Africa, as well as drawing on relevant principles from European and United States law. Contents 1. Conceptual and Historical Introduction Part A: THEORETICAL FOUNDATIONS 2. Emerging Common Law Right 3. Privilege Under the European Convention on Human Rights 4. Confidentiality 5. Disclosure 6. Structure of the Privilege - General Theory 7. Structure of the Privilege - Application PART B: PRACTICAL APPLICATIONS 8. Crime-fraud Exception 9. Criminal Exculpatory Evidence 10. Loss of Privilege Based on Intent and Disclosure [Waiver] 11. Fairness Based Loss of Privilege [Waiver] 12. Indadvertent Disclosure 13. Past and Future Directions
Table of Contents:
Conceptual and historical introduction: place of the privilege; dating of the privilege's origin; the original reason for the privilege - honour theory?; need for historical revision; book thesis - balancing and absoluteness. part A Theoretical foundations: emerging common law right - introduction, non-rights instrumentalism and utilitarianism, rights, context, Canada, Australia, South Africa, New Zealand, England, European Court of Justice, United States, analysis of authority, "mere rule of evidence", rationale and the rules of privilege, conclusions; privilege under the European Convention on Human Rights - introduction, section 1 article 6, section II article 8, conclusion; confidentiality - introduction, section 1 theoretical importance of confidentiality, section II practical importance of confidentiality - theories of practice, section III practical importance of confidentiality - empirical evidence, conclusions; disclosure - introduction, section I theory - goal of truth in litigation, section II practice - value placed on disclosure and compulsion, section III assessing the detriment to truth, conclusions; structure of the privilege - general theory - introduction, section 1 rationale and the balancing issue, section II basics of the balancing debate, section III level of abstraction, conclusions; structure of the privilege - application - introduction, section I current approach and explanation, section II consistency with privilege derogations, section III consistency with substantive rules of privilege, section IV rule balancing as a judicial function, conclusions. Part B practical applications: crime-fraud exception - introduction, brief history, section 1 the two rationales, section II choosing between the two rationales, conclusions; criminal exculpatory evidence - introduction, section 1 principle of in favorem innocentiae, section II place in the privilege, conclusions; loss of privilege based on intent and disclosure (waiver) - introduction, section 1 intent based on loss of privilege, section Ii disclosure based loss of privilege, section III meaning of privilege where it exists despite closure, conclusion; fairness based loss of privilege (waiver) - introduction, partial disclosure, putting in issue and related rules, analysis of the fairness rationale, effect on absoluteness of the privilege, the effects of waiver - total or partial abrogation, conclusion; inadvertent disclosure - introduction, section I the unresolved problem, section II principles grounding relief, conclusion; past and future directions.
