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Each month we send our subscribers a monthly newsletter and last month we focused on the issue of privilege. We released our Practice Note on material sent in error or wrongfully used. Continuing this theme, we now consider litigation privilege and in doing so look at the law reports available on LexisLibrary, as well as the status the court attributes to the various reports.
The Court of Appeal (Civil Division) judgment in Rawlinson and Hunter Trustees SA & Ors v Akers & another  All ER (D) 200 (Feb);  EWCA Civ 136 is a useful reminder of some of the key principles in relation to litigation privilege, including:
In Rawlinson, the Court of Appeal (Civil Division) dismissed the appeal that disclosure be prevented on the grounds of litigation privilege. In doing so it found the dominant purpose test had not been satisfied, namely, those documents had not come into being to obtain legal advice from a lawyer about actual or anticipated litigation proceedings. In addition to providing a summary of some of the key factors the court will take into account on such an application, it also considers the situation where there are dual or multiple purposes for the material documents.
Here the court was not satisfied on the dominant purpose test, where the first duty of the liquidators was to obtain information simply to establish what, if any assets or liabilities existed and what, if any, steps were available to the liquidators to collect on the assets or to reduce or discharge the liabilities (para 15). It pointed to the burden of proof being on the party asserting litigation privilege to satisfy it on the dominant purpose test. This is equally, perhaps especially, true where there was more than one purpose for the creation of the material document.
It also took into account the following non-determinative factors:
This case is also a useful reminder of the limitations the appeal court will place on itself when determining such applications. Here the court said (para 20):
'Although we are in as good a position as was the judge to reach a conclusion on the question whether the dominant purpose test was in each case satisfied, I need hardly point out that this court will hesitate long before interfering with a careful assessment of this nature by a judge experienced in the relevant field, who has correctly directed himself as to the applicable legal principles'
With so many different sources for cases, do you know the status that the court attributes to them for use in court proceedings? For an understanding of the hierarchy of the available reports as well as dealing with ex tempore (oral) judgments and explaining neutral citations download our free Practice Note Law reports: Hierarchy and status of authorities [PDF].
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