Privileged Communication: Does The Law Offer Sufficient Protection? | Zeniath Abiri
Privilege
is a rule of evidence that allows the beneficiary of the privilege to refuse to
disclose information or provide evidence about a certain subject or to bar such
evidence from being disclosed or used in a judicial or other proceeding. This
principle was judicially defined in B v. Auckland v. Society,[1] as a right to resist the compulsory disclosure
of information. Privilege acts to protect a witness from answering questions in
evidence, and/or entitles a party to refuse to produce documents for
inspection, during the course of legal proceedings. This doctrine is thus, not
just a rule of evidence, but is also a substantive legal right. It follows that
it would amount to a breach of this fundamental legal right, for a court to
draw any adverse inference, from the making of a valid claim to privilege.[2]
is a rule of evidence that allows the beneficiary of the privilege to refuse to
disclose information or provide evidence about a certain subject or to bar such
evidence from being disclosed or used in a judicial or other proceeding. This
principle was judicially defined in B v. Auckland v. Society,[1] as a right to resist the compulsory disclosure
of information. Privilege acts to protect a witness from answering questions in
evidence, and/or entitles a party to refuse to produce documents for
inspection, during the course of legal proceedings. This doctrine is thus, not
just a rule of evidence, but is also a substantive legal right. It follows that
it would amount to a breach of this fundamental legal right, for a court to
draw any adverse inference, from the making of a valid claim to privilege.[2]
Privilege
communications is protected in various forms and in varying degrees, in
different jurisdictions of the world. Part 3.10 of the Australian Evidence Act
2011,[3] deals with privileges and by Sections 117-128 thereof,
the following privileges have been identified; (a) Client legal privilege, (b)
Journalist privilege, (c) Religious confession privilege and (d) Privilege
against self-incrimination.
communications is protected in various forms and in varying degrees, in
different jurisdictions of the world. Part 3.10 of the Australian Evidence Act
2011,[3] deals with privileges and by Sections 117-128 thereof,
the following privileges have been identified; (a) Client legal privilege, (b)
Journalist privilege, (c) Religious confession privilege and (d) Privilege
against self-incrimination.
In Nigeria,
Sections 164 – 176 0f the Evidence Act of Nigeria 2011[4] and Section 16 of the Freedom of Information Act, L.F.N
2011,[5] provides for privileged communication. A combined
reading of those sections, reveals that the following types of privilege exist
in Nigeria; (a) Spousal privilege. [6](b) Judicial privilege,[7] (c) Legal profession privilege,[8] (d) Privilege against self-incrimination,[9] (e) Health worker – patient privilege ,[10](f) Journalist privilege,[11] and (g)Without prejudice privilege.[12]
Sections 164 – 176 0f the Evidence Act of Nigeria 2011[4] and Section 16 of the Freedom of Information Act, L.F.N
2011,[5] provides for privileged communication. A combined
reading of those sections, reveals that the following types of privilege exist
in Nigeria; (a) Spousal privilege. [6](b) Judicial privilege,[7] (c) Legal profession privilege,[8] (d) Privilege against self-incrimination,[9] (e) Health worker – patient privilege ,[10](f) Journalist privilege,[11] and (g)Without prejudice privilege.[12]
While
some jurisdictions offer legal protection for communications between Priest and
penitent, Nigeria offers no such protection. Such protection is only offered by
the rules of the profession, where such rules exist.
some jurisdictions offer legal protection for communications between Priest and
penitent, Nigeria offers no such protection. Such protection is only offered by
the rules of the profession, where such rules exist.
In
the rest of this paper, I focus on the three most prominent instances of
privilege, as these instances cut across most jurisdictions of the world.
the rest of this paper, I focus on the three most prominent instances of
privilege, as these instances cut across most jurisdictions of the world.
Legal Profession Privilege.
Legal
professional privilege seeks to protect communication between a client and his
lawyer. It is based on the need to obtain legal advice, freely, safely and
sufficiently. The rationale for the rule of legal professional privilege, was
given in Anderson v. Bank of British Columbia[13], in the following words; “….a man, in order to
prosecute his rights or defend himself,…should have resource to the assistance
of professional lawyers….he should be able to place unrestricted and unbound
confidence in the professional agent, and the communication he so makes, should
be kept secret, unless with his consent, that he should be enabled to properly
conduct his litigation.”[14]
professional privilege seeks to protect communication between a client and his
lawyer. It is based on the need to obtain legal advice, freely, safely and
sufficiently. The rationale for the rule of legal professional privilege, was
given in Anderson v. Bank of British Columbia[13], in the following words; “….a man, in order to
prosecute his rights or defend himself,…should have resource to the assistance
of professional lawyers….he should be able to place unrestricted and unbound
confidence in the professional agent, and the communication he so makes, should
be kept secret, unless with his consent, that he should be enabled to properly
conduct his litigation.”[14]
Although,
privilege belongs to the party and not the lawyer, the right of privilege is
most often asserted by the lawyer.[15] This privilege is also protected by Rule 19 (1)
and (2) of the Rules of Professional Conduct for Legal Practitioners, 2007, in
Nigeria (“R.P.C Nigeria”).[16]
privilege belongs to the party and not the lawyer, the right of privilege is
most often asserted by the lawyer.[15] This privilege is also protected by Rule 19 (1)
and (2) of the Rules of Professional Conduct for Legal Practitioners, 2007, in
Nigeria (“R.P.C Nigeria”).[16]
Duration
of Legal Profession Privilege: The
rule is generally, once a privilege, always a privilege and once privilege is established,
the mouth of the lawyer is ‘shut forever’.[17] This position was reaffirmed in Nationwide
Building Society v. Various Solicitors,[18] Blackburn J. took a differing view in where he
held that the right to privilege is absolute and the lawyer’s mouth is indeed,
‘shut forever’. In the earlier case of R. v. Derby Magistrates Court Ex P. B.,[19] Lord Nicholls said obiter,
that in circumstances where the client has no interest in asserting the right
to privilege and the enforcement of the right would be seriously prejudicial to
another, in defending a criminal charge or in some other way, he cannot expect
the law to protect the right. I agree more with the Lord Nicholls view, as same
seems to ensure that the interest of justice is better served, which is the
whole essence of the legal system. It is important to note that the duration of
this form of privilege, continues even after employment has ceased.[20]
of Legal Profession Privilege: The
rule is generally, once a privilege, always a privilege and once privilege is established,
the mouth of the lawyer is ‘shut forever’.[17] This position was reaffirmed in Nationwide
Building Society v. Various Solicitors,[18] Blackburn J. took a differing view in where he
held that the right to privilege is absolute and the lawyer’s mouth is indeed,
‘shut forever’. In the earlier case of R. v. Derby Magistrates Court Ex P. B.,[19] Lord Nicholls said obiter,
that in circumstances where the client has no interest in asserting the right
to privilege and the enforcement of the right would be seriously prejudicial to
another, in defending a criminal charge or in some other way, he cannot expect
the law to protect the right. I agree more with the Lord Nicholls view, as same
seems to ensure that the interest of justice is better served, which is the
whole essence of the legal system. It is important to note that the duration of
this form of privilege, continues even after employment has ceased.[20]
Categories
of Legal Professional Privilege: There
are basically two categories; (a) Legal advice privilege: protects
communication between a client and his lawyer, which are part of the process of
the giving and getting of legal advice, without the existence or contemplation
of legal proceedings; (b) Litigation privilege only covers communications made
when there a pending litigation or a reasonable expectation of one. This form
of privilege protects information which comes into existence, for the purpose
of gathering evidence for legal proceedings and usually, includes
communications made to 3rd parties, for this purpose.
of Legal Professional Privilege: There
are basically two categories; (a) Legal advice privilege: protects
communication between a client and his lawyer, which are part of the process of
the giving and getting of legal advice, without the existence or contemplation
of legal proceedings; (b) Litigation privilege only covers communications made
when there a pending litigation or a reasonable expectation of one. This form
of privilege protects information which comes into existence, for the purpose
of gathering evidence for legal proceedings and usually, includes
communications made to 3rd parties, for this purpose.
Instances
where information amounting to Legal Profession Privilege may be admitted.
where information amounting to Legal Profession Privilege may be admitted.
By
Rule 19 (3) of the R.P.C Nigeria, a lawyer may reveal confidences or secrets
with the consent of the client or clients affected, but only after a full
disclosure to them, in the following instances;
Rule 19 (3) of the R.P.C Nigeria, a lawyer may reveal confidences or secrets
with the consent of the client or clients affected, but only after a full
disclosure to them, in the following instances;
confidences
or secrets when permitted under the rules of the R.P.C Nigeria, or required law
or a Court order;
or secrets when permitted under the rules of the R.P.C Nigeria, or required law
or a Court order;
where
the privileged information reveals an intention of his client to commit a crime
and the information necessary to prevent the crime;
the privileged information reveals an intention of his client to commit a crime
and the information necessary to prevent the crime;
secrets
necessary to establish or collect his fee or privileged communication necessary
to defend himself or his employees or associates against an accusation of
wrongful conduct, and
necessary to establish or collect his fee or privileged communication necessary
to defend himself or his employees or associates against an accusation of
wrongful conduct, and
where
a court finds that the interest of the public in having information disclosed
is greater and far more vital than protecting the attorney-client
communication.[21]
a court finds that the interest of the public in having information disclosed
is greater and far more vital than protecting the attorney-client
communication.[21]
This
is the general position in nearly all jurisdictions worldwide.
is the general position in nearly all jurisdictions worldwide.
“Without
Prejudice” Privilege.
Prejudice” Privilege.
This
refers to written or oral communications, which are made for the purpose of a
genuine attempt to settle a dispute, without having to recourse to litigation.
Such communications are not admissible in evidence.[22]
refers to written or oral communications, which are made for the purpose of a
genuine attempt to settle a dispute, without having to recourse to litigation.
Such communications are not admissible in evidence.[22]
In
Cutts v. Head,[23] Oliver C.J said the rationale for this rule, is
to encourage disputing parties, to as much as possible, settle their disputes,
without recourse to litigation, and in doing so, parties should not be
discouraged by the knowledge that what is said in the course of such
negotiations, may be used to their prejudice, in the course of legal
proceedings.[24]
Cutts v. Head,[23] Oliver C.J said the rationale for this rule, is
to encourage disputing parties, to as much as possible, settle their disputes,
without recourse to litigation, and in doing so, parties should not be
discouraged by the knowledge that what is said in the course of such
negotiations, may be used to their prejudice, in the course of legal
proceedings.[24]
Information
disclosed without prejudice may be given in evidence in the following
circumstances:
disclosed without prejudice may be given in evidence in the following
circumstances:
When
the court needs to determine whether the parties reached a
compromise/agreement.
the court needs to determine whether the parties reached a
compromise/agreement.
To
determine whether an agreement apparently concluded by the parties, should be
set aside on the grounds of misrepresentation, fraud or undue influence.
determine whether an agreement apparently concluded by the parties, should be
set aside on the grounds of misrepresentation, fraud or undue influence.
To
establish a clear statement which is made by one party to the negotiations, on
which the other party to the negotiations is to act and does infact act, may be
admissible, as giving rise to estoppel.
establish a clear statement which is made by one party to the negotiations, on
which the other party to the negotiations is to act and does infact act, may be
admissible, as giving rise to estoppel.
To explain
delay or acquiescence.
delay or acquiescence.
To
prevent the inappropriate use of privilege. Such as where a party cites the
negotiations as reason for the delay, the other party may produce the
communications to show they do not justify the delay.
prevent the inappropriate use of privilege. Such as where a party cites the
negotiations as reason for the delay, the other party may produce the
communications to show they do not justify the delay.
Where
the word, “without prejudice save as to cost”, is used, the communications may
be admitted on questions as to cost.[25]
the word, “without prejudice save as to cost”, is used, the communications may
be admitted on questions as to cost.[25]
In
addition to the above, communications made ‘without prejudice’ will be admitted
where the dispute has been resolved or the parties agree to waive privilege.
addition to the above, communications made ‘without prejudice’ will be admitted
where the dispute has been resolved or the parties agree to waive privilege.
Privilege against Self-Incrimination.
No
person is bound to answer any question in legal proceedings, if the answer
thereto, may expose him to any criminal charge or penalty. It also encompasses
the accused person’s right to silence. However, where the accused in a criminal
trial chooses to give evidence, he may be asked any question in relation, in
cress examination, irrespective of the fact that such questions tend to
incriminate him with respect to the offence charged. He may not however, be
asked questions tending to show he committed other offences, save for limited
situations[26]. The privilege allows a person to refuse to
incriminate himself or his spouse.[27]
person is bound to answer any question in legal proceedings, if the answer
thereto, may expose him to any criminal charge or penalty. It also encompasses
the accused person’s right to silence. However, where the accused in a criminal
trial chooses to give evidence, he may be asked any question in relation, in
cress examination, irrespective of the fact that such questions tend to
incriminate him with respect to the offence charged. He may not however, be
asked questions tending to show he committed other offences, save for limited
situations[26]. The privilege allows a person to refuse to
incriminate himself or his spouse.[27]
Because
this form of privilege is usually claimed after the holder has been sworn as a
witness, he cannot refuse to attend court, for fear of incriminating himself. [28]
this form of privilege is usually claimed after the holder has been sworn as a
witness, he cannot refuse to attend court, for fear of incriminating himself. [28]
It
is not enough for the witness to simply assert that answering the question
incriminates him. The court must be satisfied that there is reasonable ground
to apprehend such danger to him, from his being compelled to answer the
question.[29]
is not enough for the witness to simply assert that answering the question
incriminates him. The court must be satisfied that there is reasonable ground
to apprehend such danger to him, from his being compelled to answer the
question.[29]
Transfer of the Right of Privilege.
Although
unusual, where contractual rights transferred or assigned, includes a claim to
privilege, the claim may also be asserted and enjoyed, by the assignee or
successor-in-title.
unusual, where contractual rights transferred or assigned, includes a claim to
privilege, the claim may also be asserted and enjoyed, by the assignee or
successor-in-title.
Conclusion.
It
is my opinion that despite the exceptions to the rule on privileged
communication, the principle offers sufficient protection for those it seeks to
protect. As it concerns Legal Profession Privilege for instance, The R.P.C Nig.
makes it professional misconduct, for a legal practitioner to breach this duty, and
entitles the client to sue such a legal practitioner, and/report the legal
practitioner to the relevant body, for appropriate disciplinary measures to be
taken. Even though exceptions to the admissibility of privileged communications
exist, they are limited in scope and applied very strictly. It is a right
treated with highest regards and the need to waive it must outweigh the need to
protect the right, unless where the holder expressly waives it.
is my opinion that despite the exceptions to the rule on privileged
communication, the principle offers sufficient protection for those it seeks to
protect. As it concerns Legal Profession Privilege for instance, The R.P.C Nig.
makes it professional misconduct, for a legal practitioner to breach this duty, and
entitles the client to sue such a legal practitioner, and/report the legal
practitioner to the relevant body, for appropriate disciplinary measures to be
taken. Even though exceptions to the admissibility of privileged communications
exist, they are limited in scope and applied very strictly. It is a right
treated with highest regards and the need to waive it must outweigh the need to
protect the right, unless where the holder expressly waives it.
[1] [2003] 2 A.C. 736, para. 67,
[2] See Wentworth v. Lloyd [1864] 10 H.L.C. 589.
[3] (hereinafter referred to as the E.A Aust.)
[4] (hereinafter referred to as the E..A Nig.)
[5] (subsequently referred to as the F.I.A Nig.)
[6] S. 164, E.A. Nig.
[7] S. 165, E.A. Nig.
[8] .S. 170-173 E.A. Nig, S.16 (a) F.I.A. Nig.
[9] S. 176 E.A. Nig.
[10] S.16 (b) F.I.A. Nig.
[11] S. 16 (c), F.I.A Nig.
[12] with respect to disclosures made in the course of
negotiations to settle a dispute. S. 28 E.A. Nig.
negotiations to settle a dispute. S. 28 E.A. Nig.
[13] [1875-1876] L.R. 2 Ch. D. 644 @ 649
[14] Horn v. Richard (1963)2 All N.L.R. 40 @ 41
and Three rivers D.C v. Bank of England (No. 5) [2003] Q. B. 1556, para. 39.
and Three rivers D.C v. Bank of England (No. 5) [2003] Q. B. 1556, para. 39.
[15] (except in cases where the claim of privilege is
against self-incrimination).
against self-incrimination).
[16] S.126 (b) E.A. Aust. (It must
be noted that while privilege protects documents from inspection, it does not
necessarily protect them from disclosure).
be noted that while privilege protects documents from inspection, it does not
necessarily protect them from disclosure).
[17] The Agis Blaze [1986] 1 Llyods Rep. 203 CA.
[18] [1999] P.N.L.R., 52 @ 69
[19] [1996] 1 A.C., 487
[20] S. 170 (3) of the E.A. Nig..
[21] S. 25 (1)(c) F.I.A Nig..
[22] GPI Leisure Corporation v. Yuill [1997] 42 N.S.W.L.R.,
225.
225.
[23] [1984] Ch. 290 @ 306
[24] See also, the Nigerian case of Chief Oredin v.
I.P.H. El Khalil & Ors. [1978] 2 OY.S.H,C. 325.
I.P.H. El Khalil & Ors. [1978] 2 OY.S.H,C. 325.
[25] See Unilever v. Proctor & Gamble 28 [2001] 1. All
E.R., 783, per Robert Walker L.J.
E.R., 783, per Robert Walker L.J.
[26] Documentary Evidence
Charles Hollander Q.C. Sweet & Maxwell, (9th edition), para. 17-01. See
also, Section 36 of the Constitution of Nigeria 1999 (as amended)
Charles Hollander Q.C. Sweet & Maxwell, (9th edition), para. 17-01. See
also, Section 36 of the Constitution of Nigeria 1999 (as amended)
[27] See Blunt v. Park Lane Hotel Limited [1942] 2 All E.R.
187 @ 189.
187 @ 189.
[28] See Boyle v. Wiseman [1855] 10 Exch. 647. published by
Sibon Books Ltd,
Sibon Books Ltd,
[29] See R. v. Coote [1873], L.R. 4 P.C. 599. See also, Law
& Practice of Evidence in Nigeria, by Afe Babalola, 2001 (ch 9 p. 173).
& Practice of Evidence in Nigeria, by Afe Babalola, 2001 (ch 9 p. 173).
Zeniath Abiri
Managing
Partner
Abiri
& Mustafa Legal Practitioners.
Partner
& Mustafa Legal Practitioners.
