Summary of rule of Confidentiality of Communications in Scotland
Although the phrase "legal professional privilege" has been
used in some statues which have effect in Scotland, the more appropriate
term in Scotland is "confidentiality of communications". In
addition, it would be wrong to assume that the Scottish term means the
same as LPP in England and Wales. The principles are subtly different
and interpretation of the concept in Scotland will not always follow
the approach of the authorities in English law. The infrequency of reported
cases means that some aspects of the privilege have not been judicially
considered in as much detail as in England and Wales.
The operation of this exemption is complex and in some respects potentially
uncertain. Confidentiality of communications is a principle founded
on Scots common law, and its precise details continue to evolve through
case law. It is important that legal advice is taken where it appears
that information which is the subject of a request might fall within
section 42.
The principle of privileged communications in Scotland embraces two
concepts - the confidentiality of communications between a legal adviser
and client , and the privilege of communications made post litem motam
(in contemplation of litigation).
Confidentiality of communications between legal adviser and client:
The privilege covers communications by solicitors, advocates, solicitor-advocates
and advocate-clerks. It probably covers in-house lawyers and lawyers
working for one public authority providing advice to another public
authority.
The legal adviser must be acting in his professional capacity and
the communications must occur in the context of his professional relationship
with his client.
It is likely that communications are privileged whether or not they
relate to pending or contemplated litigation.
The privilege does not extend to matters knows to the legal adviser
through sources other than the client or to matters in respect of
which there is no reason for secrecy. Communications which are intended
to be "confidential" in a non-legal sense are likely to
attract the privilege.
The privilege does not extend to communications which relate to
fraud or the commission of an offence.
Documents held by the legal adviser but prepared by others are not
privileged (including communications between the client and third
parties), but legal advice given by the legal adviser to client concerning
the same documents is privileged.
The fact that advice was sought is not necessarily privileged.
Privilege of communications made post litem motam:
This privilege covers communications which take place in anticipation
of civil litigation
Litigation need not have started, but there should be a threat of
litigation, and the privilege subsist even if litigation never in
fact takes place or is concluded
The point in time when the privilege starts is not settled and may
occur as early as immediately following upon the events to which the
communication relates
The privilege covers any communication to or by a litigant in connection
with the preparation of his case. The exception is that of reports
prepared by employees who were present at the time of an accident
for the benefit of their employers, even where the report is passed
to the employers' insurers with a view to litigation starting.
The communications should have some substance, as a chance remark
about a case is not privileged
A communication which is passed to a third party loses its confidential
status
If a communication, which is otherwise privileged, is to be founded
upon in pleadings to the litigation or led as evidence, it will have
to be disclosed in accordance with usual Scots law civil procedure
Admitting that the communication exists does not automatically waive
its confidential status.
The concept of confidential communications will apply to the Scottish
bodies listed in Schedule 1 to the Act. It should be noted that a similar
exemption for confidential communications in Scotland (section 36) and
a test of public interest (section 3) are available under the Freedom
of Information (Scotland) Act 2002 to the devolved bodies listed in
Schedule 1 to that Act. In addition, the 2002 Act does not apply to
information which has been supplied to a Scottish public authority in
confidence by a Minister of the Crown or by a United Kingdom government
department, which could include legal advice shared with a Scottish
body by a United Kingdom government department or by a United Kingdom
government lawyers.
In the context of litigation, confidentiality of communications may
arise either in relation to the disclosure of documents in support of
a party's case, or where one party seeks to recover evidence from another
party to the litigation, or from a third party. In accordance with usual
Scots law rules on evidence, if communications are to be founded upon
in pleadings, or led in evidence, they will have to be disclosed. A
party may seek to recover evidence relevant to his case by means of
a Commission and Diligence. The person/body holding the evidence is
entitled to challenge the obligation to disclose the evidence to a Commissioner
who has been appointed by the court to oversee the recovery process
and the confidential status of the evidence can be raised at this stage.
