LEGAL 101 – Two Favourite Concepts: “Without Prejudice” and Client Legal Privilege

1. LEGAL 101 – Two Favourite Concepts: • “Without Prejudice” and • Client Legal Privilege THINK.CHANGE.DO

2. UTS LEGAL SERVICES – Legal 101“Without Prejudice” – What is it? • It excludes from evidence: • Communications made by parties in dispute in connection with an attempt to negotiate a settlement of a dispute; and • A document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute, subject to a number of exceptions (which I will outline later).

3. UTS LEGAL SERVICES - Legal 101“Without Prejudice” – What is it? • When something is said in “without prejudice” communications in settlement negotiations this means it is for the purposes of discussion only; • Once negotiations are complete, offers for the purposes of negotiation no longer apply and cannot be used in evidence.

4. UTS LEGAL SERVICES - Legal 101“Without Prejudice” – Why do we have this? • Supports the public policy of assisting people to settle disputes quickly and informally without resorting to the courts.

5. UTS LEGAL SERVICES - Legal 101Limits on the Use of “Without Prejudice” • The protection doesn’t apply in many circumstances for example, if: • Those in dispute consent to the admission of the evidence. • The substance of the evidence has been provided with express or implied consent of the parties. • The substance of the evidence has been partly disclosed in the proceedings and it is necessary to understand that evidence.

6. UTS LEGAL SERVICES - Legal 101Limits on the Use of “Without Prejudice” • The protection doesn’t apply in many circumstances for example, if: • The communication or document included a statement that it did not need to be treated as confidential. • The communication was made to commit fraud or an offence carrying a civil liability. • The document is relevant to liability for costs in the proceedings. ……… and the list goes on in a “technical” way.

7. UTS LEGAL SERVICES - Legal 101“Without Prejudice” – TIPS AND TRAPS • DO: • Use “Without Prejudice” to assist you in genuine negotiations to settle disputes (BUT USE IT CAREFULLY). • Remember to take the words “without prejudice” off the final agreement to settle.

8. UTS LEGAL SERVICES - Legal 101“Without Prejudice” – TIPS AND TRAPS • DON’T: • Make written admissions without legal advice, thinking the words “Without Prejudice” will necessarily protect you. Not all discussions which you might think are “without prejudice” are! • Plaster it all over all your correspondence – it only applies in genuine settlement negotiations. • Panic if you forgot to put “without prejudice” on correspondence. • A court may well imply the protections of “without prejudice” negotiations anyway where there was a genuine attempt to settle.

9. UTS LEGAL SERVICES - Legal 101Client Legal Privilege – What is it? • It is the right of a client to prevent his lawyer from disclosing: • Confidential communications between a client and his or her legal adviser(s) if made for the dominant purpose of: • Enabling the client to obtain legal advice; or • With reference to existing or anticipated legal proceedings; and • The contents of a confidential document (whether delivered or not) prepared by a lawyer/s, or created on the instructions of a lawyer (e.g. lawyer commissioned investigation reports).

10. UTS LEGAL SERVICES - Legal 101Client Legal Privilege – When does it apply? • E.g. FOI/GIPA requests can be defeated with the defence of client legal privilege, e.g. prevents production of documents to a court on subpoena. • This is different from a lawyer’s duty to maintain confidentiality, because a lawyer can be compelled to disclose confidential information on subpoena or otherwise by law in the same way as everyone else.

11. UTS LEGAL SERVICES - Legal 101Client Legal Privilege • How is this useful? • It prevents third parties obtaining access to certain confidential documents. • It allows legal advisors to be very clear and frank in explaining legal issues and risks to their clients without worrying about this being used in evidence against the client.

12. UTS LEGAL SERVICES - Legal 101Reasons for Client Legal Privilege • There are 2 competing public policy considerations: • Assists administration of justice – by protecting confidentiality it facilitates representation of clients by lawyers; and • In the administration of investigative procedures there should be unfettered access to relevant information.  There are some limitations placed on privilege

13. UTS LEGAL SERVICES - Legal 101Some Limitations on Client Legal Privilege Privilege will not apply where: • Communications are fraudulent or unlawful purposes. • Privilege is claimed for improper purposes including “trickery” or “shams”, where protection of confidentiality would be contrary to the public interest. • The privilege has been overriden by statute by express provisions – e.g. ICAC. • It has been waived (destroyed).

14. UTS LEGAL SERVICES - Legal 101Can I Inadvertently Destroy Client Legal Privilege? • Yes, easily • By distributing confidential and privileged legal advice to third parties you are waiving (destroying) the privilege. • By passing on or referring to the conclusions or essence of legal advice in communications with third parties.

15. UTS LEGAL SERVICES - Legal 101What happens if I destroy Client Legal Privilege? • If privilege is waived: • It cannot be retrieved. • Can be extremely detrimental to the success of legal proceedings because the document or legal advice is no longer protected from disclosure either in court (or from a GIPA application).

16. UTS LEGAL SERVICES - Legal 101Client Legal Privilege – TIPS AND TRAPS • DO: • Make a request for legal advice in writing, marked “Confidential”. • Circulate privileged legal advice ONLY to people within the University who are directly concerned with the subject of the legal advice.

17. UTS LEGAL SERVICES - Legal 101Client Legal Privilege – TIPS AND TRAPS • DON’T: • Think that writing “confidential and privileged” on legal advice will necessarily retain the privilege. • Distribute confidential legal advice to anyone outside the University without the consent of UTS Legal Services. • Don’t summarise, reference or comment on legal advice you have received.