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The practical application of legal professional privilege in discovery proceedings

Monday, 22 August 2016   (0 Comments)
Posted by: Authors: Taryn Solomon and Megan McCormack
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Authors: Taryn Solomon and Megan McCormack (ENSafrica)

General principles

Legal professional privilege applies to communications between a client and legal advisor, where the legal advisor is acting in a professional capacity and is consulted in confidence for the purpose of the client obtaining legal advice (other than advice facilitating crime or fraud), and where legal professional privilege is claimed by that client.

However, it is possible for legal professional privilege to be waived, either expressly or by way of that waiver being implied or imputed. The manner in which legal professional privilege may be implied or imputed was summarised as follows by the court in S v Thandwa and Others at paragraph 18:

"Implied waiver occurs (by analogy with contract law principles) when the holder of the privilege with full knowledge of it so behaves that it can objectively be concluded that the privilege was intentionally abandoned. Imputed waiver occurs where – regardless of the holder’s intention – fairness requires that the court conclude that the privilege was abandoned; imputed waiver proceeds from fairness, regardless of actual abandonment.”

In discovery proceedings, documentation and correspondence in respect of which legal professional privileged is claimed, and in respect of which this privilege has not been waived, are generally listed in a separate schedule to the respective parties’ discovery affidavits. These documents will not be provided to the other side, and may not be relied upon in subsequent proceedings unless a supplementary discovery affidavit is lodged, in which the document previously listed as privileged is fully disclosed.

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