Objection To Evidence – Legal Professional Privilege

Kingley & Arndale [2008] FMCAfam 600 saw Purdon Sully FM dealing with an objection to evidence on the basis of legal professional privilege. In so doing Her Honour found that:

1. Those claiming the legal professional privilege should produce an affidavit sworn by a lawyer from the solicitors or the litigant or both to prove that the communications in the files are confidential; and they were created for the dominant purpose of providing legal advice in anticipation of litigation that was taking place or reasonably apprehended.
2. The Court is unable to assess the “dominant purpose” test in respect of the subject documents without some evidence on oath and possibly some limited cross examination.
3.  In assessing any claim for legal professional privilege the timing of the dominant purpose and the anticipated proceedings should be considered with respect to the documents sought.
4.  Further the following may also be relevant: the circumstances in which any external advice is sought and its disclosure, and whether privilege has been waived or not .
5. That assessment is usually done after consideration of evidence on oath.
6. The issue of waiver of the legal professional privilege cannot be determined without sworn evidence.
7. The Court is unable to assess a claim of legal professional privilege in relation to a category of documents without properly tested evidence before the Court on oath and inspection of particular documents, if necessary.