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Does Legal Professional Privilege Extend to Draft and Final Expert Reports and Copies of Documents?

What exactly is legal professional privilege?

Legal professional privilege protects lawyer-client communications made for the purpose of obtaining legal advice or for the purpose of obtaining information necessary for use in litigation. It also protects communications between a lawyer and third parties if made in contemplation of litigation. Firstly, the rationale for this type of privilege is to encourage the fostering of trust and candour in the lawyer-client relationship: Grant v Downs (1976) 135 CLR 674 at 685). Secondly, the rationale for this type of privilege is to keep any information which a lawyer or a party may have attained to establish an action in Court from the other side: Baker v Campbell (1983) 49 ALR 385 at 427.

As a general principle, confidential communications between a lawyer and his or her client or third party which have been made for the dominant purpose of seeking or being furnished with legal advice or for the dominant purpose of preparing for actual or contemplated litigation, need not be disclosed in evidence or otherwise revealed: Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 168 ALR 123.

So what is the dominant purpose of expert reports?

The right to attain and produce expert evidence has been prevalent in our judicial system for over 30 years. ‘An expert’s opinion is admissible to furnish the court with scientific information which is likely to be outside the experience and knowledge of a judge or jury’ (R v Turner (1975) QB 834 at 841). This view was approved in Australia in 1989 in Murphy v R (1989) 167 CLR 94 at 111.

In the recent decision of New Cap Reinsurance Corporation Ltd (In Liq) v Renaissance Reinsurance Ltd (2007) NSWSC (“New Cap”), Justice White observed that prima facie an expert’s final report or final witness statement would not be privileged under the Evidence Act 1995 (NSW) because presumably the dominant purpose of those documents was to be laid before the Court as the witness’ evidence (para 29).

Are copied documents or draft expert reports privileged?

Conversely, in Commissioner Australian Federal Police v Propend Finance Pty Ltd (1997) 141 ALR 545, the High Court held that privilege attaches to even a copy document which is provided to a lawyer if the copy was made solely for the purpose of obtaining legal advice. Similarly, in New Cap, Justice White declared that draft reports will only be privileged under the Evidence Act if their dominant purpose was for the client to be provided with professional legal services relating to anticipated or pending proceedings. It is not sufficient to merely show that a draft report was brought into existence for the dominant purpose of use in legal proceedings (para 27).

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