Civil Procedure Privilege - PRIVILEGE Cross and Tapper Chp IX Privilege means either the right of a witness when testifying to refuse to answer certain

Civil Procedure Privilege - PRIVILEGE Cross and Tapper Chp...

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PRIVILEGE Cross and Tapper, Chp. IX Privilege means either the right of a witness when testifying to refuse to answer certain types of question or the right of a party when making disclosure to refuse to produce certain documents for inspection, on grounds defined by law Arise in the course of witness testimonial evidence or usually arise in the course of disclosure. The rules applied are the same. Privileged documents must be disclosed, but need not be made available for inspection by the other side. This means they must be identified in the 2 nd section of the list of documents. A. PRIVATE PRIVLEGE (only private parties may invoke) So if you can prove the same thing w/ a non-privilege rule, then that is permissible. However, for public privilege immunity, this does not apply. The privilege is a privilege against the documents for inspection, however is not a privilege against disclosing them. E.g. you can say that you got them, but you do not need to make them available for the opposing party. Self-incrimination ( A witness cannot be compelled to answer question/ produce documents that will incriminate them for an offense or expose them to a penalty ) This should not be mixed up w/ the admissibility of confession in criminal case e.g. voluntary. General principles Blunt v Park Lane Hotel [1942] “….the rule is that no one is bound to answer any question [or produce any document] if the answer thereto would, in the opinion of the judge, have a tendancy to expose [him or her] to any criminal charge, penalty, or forfeiture which the judge regards as reasonably likely to be preferred or sued for” Renworth Ltd. v. Stephansen [1996] 3 All E.R. 244 In this case, the Plaintiff employed the D as an interior designer, to arrange for and carry out some renovations to a house. They paid the D quite a large sum of money which is to be paid contractors. However, the work did not get done. The P suspect that the D diverted the money into his own pocket, and so sought discover of documents tending to show that what have happened to the money. E.g. account. The D sought to resist the order for discovery by claiming that the disclosure will be self-incrimination. However, the Court rejected this argument. Statutory exception (Theft Act 1968, s. 31(1)) – A person shall not be excused, by reason that do so may incriminate that person of an offense under this Act. You cannot invoke the privilege in relation to recovery or administration of property, if you do answer or produce documents, they cannot be used against you in any criminal proceedings. Getting rid of privilege, but limiting the use, which can be made of anything which is produced pursuance to court’s order. C plc v. P (Secretary of State for the Home Office and another intervening) [2006] 4 All E.R. 311 Since the enactment of the HRA 1998, there has been no difference between civil and criminal cases, and that free-standing or “independent” evidence is not protected by the privilege against self-incrimination. It is only “compelled” evidence that may be protected by the privilege.
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  • Fall '15
  • The Land, criminal law, Lawyer, Evidence law, Attorney-client privilege, Crown Proceedings Act 1947

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