Application of LPP in particular circumstances

Expert reports

Communications between the lawyer and expert

Confidential communications between a lawyer and a third party expert will attract LPP where the communications are made for the dominant purpose of use in existing or reasonably anticipated litigation.¹

Common law approach to expert reports

While LPP may attach to an expert’s report or opinion, this does not restrain the expert from giving the content of the report (ie the expert’s opinion) to opposing litigants or third parties.  This rule accords with the principle that there is no property in a witness and that:

an adverse party may subpoena an expert retained by the original party and require that expert to give all relevant information in his possession, including an expression of his opinion, to the court.²

UCPR rule 212

Expert reports may be commissioned for evidentiary purposes, in preparation for litigation.

In Queensland, the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) state  that ‘a document consisting of a statement or report of an expert is not privileged from disclosure’.³

The reference to ‘a legal proceeding’ in the relevant provisions of the RTI Act and repealed FOI Act is a reference to a hypothetical legal proceeding rather than a specific legal proceeding.⁴ Therefore the exemption requires an examination of how the common law principles of LPP apply and rule 212(2) of the UCPR has no relevance in applying the exemption.

Solicitors’ briefing instructions

A lawyer’s briefing instructions to an expert constitute confidential communications made for the dominant purpose of use in litigation and prima facie attract LPP.⁵ However, the privilege attaching to these instructions may be impliedly waived where the expert report relies on the lawyer’s instructions to form his or her opinion.⁶

Working documents/ source materials/ draft reports

As to whether LPP attaches to source materials or draft documents created by the expert in the process of forming their opinion, Thomas J‘s judgment in Interchase provides the following view:⁷

In general, when an expert is engaged by a solicitor for the purpose of giving evidence in a case, documents generated by the expert and information recorded in one form or another by the expert in the course of forming an opinion are not a proper subject for a claim of legal professional privilege.  […] there is no sufficient reason why any material relevant to the formation of the expert’s opinion should be subject to a claim of legal professional privilege.

However, in Linter Group Ltd v Price Waterhouse (A Firm)⁸ an opposing viewpoint was put forward for the availability of LPP to protect draft expert reports:

…experts should not be inhibited by fear of exposure of a draft from changing their mind when such a change is warranted by the material before the expert.

Lawyers’ working documents

LPP attaches to a lawyer’s confidential working documents created for the dominant purpose of providing legal advice or for use in litigation, irrespective of whether the documents are ultimately provided to the client or used in litigation.⁹

As such, LPP may attach to lawyers’:

• drafts and notes
• research memoranda¹⁰
• collations and summaries of documents;¹¹ and
• notes or recordings of conversations with the client.¹²

Lawyers’ billing documents

Generally, lawyers’ billing documents do not attract privilege, unless they demonstrate the ‘progress of a transaction’ or disclose the ‘nature of communications’.¹³

Client/ Cost Agreements

While a cost/client agreement is generally a precondition to the existence of privilege,¹⁴ the agreement itself will not usually attract privilege.¹⁵ However, there may be exceptions in some circumstances, for example: in Cook some of the statements set out in the agreement constituted the giving of legal advice.¹⁶

Statutory Abrogation of LPP

Regulatory bodies¹⁷ which investigate criminal activities, often have wide statutory powers to obtain information by way of compulsory disclosure.

The decision in Daniels¹⁸ considered LPP as a common law right and found that LPP cannot be abrogated by statute unless there are ‘very clear, indeed unmistakable, provisions of legislation…to deprive a person, otherwise entitled, of such a privilege’.¹⁹ There must be an express, unambiguous intention of the legislature to deny LPP.  Note that this approach altered the previous approach to statutory abrogation of LPP, set down in Yuill’s case.²⁰