Communications between lawyer and third parties.

For a lawyer to be able to advise his client properly, it is sometimes necessary for him to seek the
assistance of other professionals, for example, experts and sometimes even from ordinary witnesses.
The contentious issue that arises is to what extent are communications between lawyers and third
parties privileged from disclosure in any subsequent litigation. Following the decision given in Re Sarah C
Getty Trust1, if a third party gives information to a solicitor to pass it on to the solicitor’s client, the
whole circumstances will be considered in order to decide whether this information is privileged or not.
Thus, if the transmission occurs in the context of giving legal advice, the whole of the interview will be
privileged2.

(i) Criterion for privilege to be attached.

A limiting feature of legal professional privilege, applicable to communications between a legal adviser
with third parties is inherent in the requirement that the communication should be made for the
purpose of obtaining or offering professional advice 3. In order for the privilege to be applicable, there
must be a definite prospect of litigation in contemplation by the client and not a mere vague
anticipation of it; but it is not necessary that a cause of action should have arisen 4 nor is it essential that
the third party should anticipate litigation 5.

In the ordinary case, communications that have been made, or a document that have been brought into
existence, for the purpose of enabling a legal adviser to act with regard to a litigation will not present
much difficulties. If the communications are made for a purpose other than that of obtaining or offering
legal advice, the Courts will not hesitate to order their disclosure. However, problem arises in
determining the status of documents coming into existence for more than one purpose.

The issue was first raised and debated at length by the High Court of Australia in Grant v Downs6 as to
whether the privilege should be restricted to communications made solely for the purpose of seeking
legal advice, or to those made for the dominant purpose of seeking such advice. After examining the
nature of the claim to legal professional privilege by large corporate bodies in the light of all the

1
(1985) 2 ALL ER 809
2
ibid
3
Minter v Priest (1930) A.c. 558 at 581 per Lord Atkin
4
Bristol Corporation v Cox (1884) 26 Ch D 678
5
Legal Professional privilege chapter x Privilege page 485 paragraph 2
6
(1976) 135 CLR 674
authorities, including the leading English cases 7, the majority of the High Court held that the privilege
must be confined to documents brought into existence for the “Sole Purpose” of submission to legal
advisers for advice and use in legal proceedings. However, in England, the House of Lords rejected this
approach because they believed it was too restrictive and not many claims to legal professional privilege
would be successful. Rather, they were of the opinion that the privilege should be applicable not only
for the ‘sole purpose’ but also when it was the ‘dominant purpose’.

In this respect, the House of Lords in the case of Waugh v British Railways Board 8 held that a document
would be privileged if the dominant purpose for it being made was the preparation of a case in the
event that there was litigation. In that case, the plaintiff’s husband, an employee of the defendant, was
killed in a railway accident. In proceedings for compensation, the plaintiff sought discovery of routine
internal reports prepared by the defendant regarding the accidents. Since the preparation of the
accident report had another equally important purpose, which was to inform the Board about the cause
of the accident in order that steps could be taken to avoid recurrence, privileged could not be claimed
and accordingly, these reports were ordered to be disclosed.

Before the decision in Waugh v British Railways Board, there was a doubt as to the test to be applied in
considering whether a report or other document is protected by legal professional privilege but since
then, a number of cases have followed the same decision. In Melik & Co V Norwich Union 9, an assessor’s
report was held not to attract privilege, because the dominant purpose for which it came into existence
was not the obtaining of legal advice. Similarly, in Neilson Laugharne 10, the Court of Appeal held that
statements taken by the police in the course of investigating a complaint by a member of the public
were not privileged since the dominant purpose of those statements were for the complaints
procedure.

As to the time at which the relevant document should have been made for them to be privileged, Oliver
L.J made it clear in the case of Re Highgrade Traders Ltd 11 that the dominant purpose test can be used
to claim privilege not only in respect of a document which comes into existence after a decision have
been made to instruct a solicitor, but also in respect of a document which comes into existence before
7
Legal Professional privilege chapter x Privilege page 487 paragraph 2
8
[1980] AC 52
9
(1980) 1 Lloyd’d Rep 523
10
(1981) 1 ALL ER 829
11
(1984) BCLC 151 (CA)
such a decision has been made provided that litigation is reasonably in prospect and the document is
prepared for the purpose of enabling the solicitor to advise whether a claim should be made or resisted.

(ii) Privilege in relation to experts.

As far as experts are concerned, it was held in Harmony Shipping Co v SA Saudi Europe Line Ltd 12 that
many of the communications between the solicitor and the expert of fact are privileged. Therefore they
cannot be disclosed to a court except with the consent of the party concerned. Following the decision in
this case, Dunn L.J stated in R v King 13:

“The rule in the case of experts witness is that legal professional privilege attaches to confidential
communications between solicitor and expert but it does not attach to the chattels or the document
upon which the expert based his opinion nor to the independent opinion of the expert himself…”

Thus, privilege cannot be maintained in respect of documents used by an expert to form an

opinion or write a report, regardless of how the expert came by the documents, for example, I f
samples of handwriting are sent to the expert by the lawyer, there is no privileged attached to it14.

While letters, written to a potential expert asking for his advice and disclosing the case of the client will
be privileged, on the other hand, documents which were not privileged when created will not become
privileged by simply sending them to an expert for his opinion. However, if a report is prepared by
consulting an expert for possible use in court, it will be privileged and the court cannot compelled him to
disclose that report.

But once, the expert is in the witness box, any document which is not privileged can be shown to him
and he can properly be asked to give his opinion on it. He can, of course, give in evidence the same view
that he expressed in his privileged report as it is the report itself and not the opinion of the expert which
is privileged15.

12
(1979) 1 WLR 1380 (CA)
13
(1983) 1 WLR 3411
14
Harmony Shipping Co v SA Saudi Europe Line Ltd (1979) 1 WLR 1380 (CA)

15
DISSERTATION, The Concept of Private Privilege VENGATASAMY DAMAYANTEE, page 27 paragraph 1