LEGAL 101

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• LEGAL 101 Two Favourite Concepts
• Without Prejudice and
• Client Legal Privilege

THINK.CHANGE.DO
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UTS LEGAL SERVICES Legal 101Without
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).

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UTS LEGAL SERVICES - Legal 101Without
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.

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UTS LEGAL SERVICES - Legal 101Without
Prejudice Why do we have this?

• Supports the public policy of assisting people to
  settle disputes quickly and informally without
  resorting to the courts.

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UTS LEGAL SERVICES - Legal 101Limits on the Use
of Without Prejudice

• The protection doesnt 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.

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UTS LEGAL SERVICES - Legal 101Limits on the Use
of Without Prejudice

• The protection doesnt 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.

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UTS LEGAL SERVICES - Legal 101Without
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.

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UTS LEGAL SERVICES - Legal 101Without
Prejudice TIPS AND TRAPS

• DONT
• 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.

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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).

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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 lawyers 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.

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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.

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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

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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).

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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.

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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).

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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.

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UTS LEGAL SERVICES - Legal 101Client Legal
Privilege TIPS AND TRAPS

• DONT
• 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.
• Dont summarise, reference or comment on legal
  advice you have received.