A comprehensive account of legal professional privilege as it
applies to corporations covering four major common law
jurisdictions: the UK, Australia, Canada and the United States.
Higgins provides a practical set of principles to advise
practitioners in the large number of areas where there is
uncertainty in the law of privilege as it applies to corporate
communications. This book will act as an invaluable guide to
practitioners and judges trying to ascertain the often fine line
between whether a corporate communication is privileged or not. In
particular the book provides a concise overview of the law of
privilege in the UK, Australia, Canada and the United States, and
detailed consideration of: - The definition of the corporate
client, which is still unresolved in England following the Court of
Appeal's decision in Three Rivers No 5. - The legal advisers
covered by the privilege in increasingly competitive legal services
markets, including the position of in-house counsel, accountants
and multi-disciplinary partnerships. - The key trends in the
courts' application of the legal purpose test in connection with
advice given by lawyers, and documents and communications made in
anticipation of litigation. - The application of the privilege in
'intra-corporate' disputes between the company and shareholders,
the company and its directors, as well as disputes between the
company and third parties alleging a joint interest in the
company's legal advice. - When corporate privilege is waived,
including the emerging doctrine of limited waiver endorsed in some
jurisdictions, the common-interest privilege exception to waiver,
the extent of waiver over communications with experts when a party
discloses an expert's report, and the rights of corporations to
recover privilege material disclosed unintentionally. - The scope
of the crime-fraud or iniquity exception and the procedures for
claiming and challenging privilege. In examining these issue
practitioners can compare and contrast the case law in their home
jurisdictions with the approaches taken in other common law
countries, which will be particularly helpful where there is
limited domestic authority on point. Higgins addresses questions of
principle and practice that are unique to, or commonly arise, in
corporate contexts. In addition the book will provide lawyers and
law makers with a critical examination of the rationale and scope
of privilege, highlighting areas where a strong case can be made
for more or less protection for corporate communications, or a
redistribution of the benefits and burdens of privilege in
intra-corporate disputes. The text is clearly laid out for quick
access to information. It is an essential reference tool for
practitioners in all fields of civil practice, and for students of
Civil Procedure and Evidence.
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Review This Product
The corporate law dilemma..
Sat, 12 Apr 2014 | Review
by: Phillip T.
LEGAL PROFESSIONAL PRIVILEGE VERSUS THE NEED FOR DISCLOSURE
An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers
Transparency… openness… disclosure: these have become the watchwords of modern business, to the point where it has become an almost incontrovertible truth that large corporations especially, must regard these criteria as part of an indisputable ethic to which their businesses must adhere.
Enter, however, the concept of ‘legal professional privilege’ to which this excellent book from the Oxford University Press is devoted and which is examined in a clear, lucid and robust manner. As author Andrew Higgins explains, ‘legal professional privilege’ ‘is the protection given to confidential communications between lawyers and their clients in connection with legal advice or litigation and preparatory materials thereto.’
Legal professional privilege thus enables clients -- specifically corporate clients -- to discuss all issues pertaining to a case freely and ostensibly without fear, that confidential information will be disclosed. ‘All major common law jurisdictions,’ says Higgins ‘recognize that powerful reasons exist for protecting lawyer-client communications and preparatory materials for litigation from compulsory disclosure’-- and there are four common law jurisdictions discussed in this book: England, Australia, Canada and the United States of America.
The obvious downside to all this however, is what Longmore LJ refers to in the foreword as ‘the tension between the wish of a person to avail himself of legal professional privilege and the need of society for disclosure of relevant material if disputes are to fairly resolved.’
All too often, however, the law emerges as unclear on the sometimes fuzzy demarcation between, for example, legal professional privilege and the public ‘right to know’ -- especially on issues pertaining to large companies and the public they serve. ‘But any lack of clarity,’ says Longmore, ‘will be much ameliorated by this book.’
‘Disputes about privilege’, as Higgins points out, ‘are frequently litigated in the courts and it is usually corporations doing the litigating,’ Practitioners and academics will therefore find most, if not all, their questions answered regarding legal professional privilege in this enlightening volume by virtue of its clear, multi-jurisdictional approach which, unlike some treatises on the subject, does focus on corporations.
Undoubtedly destined to become a definitive work in this difficult and invariably controversial area of law, this book will be welcomed by corporate lawyers working not just in the United Kingdom, but in the other three common law jurisdictions. Note here, the table of legislation, as well as the table of cases, which lists some very famous corporate names across the four jurisdictions discussed.
Corporate lawyers and indeed anyone wishing to explore in depth the ‘tension’ between the need for transparency and the reluctance to disclose will particularly value this book, which is extensively footnoted throughout.
The law is stated as at 1 October 2013, with a November 2013 decision of the High Court of Australia also included in this edition.
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