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Legal Professional Privilege Legal Professional Privilege: The influence of Jeremy Bentham and John Henry Wigmore on the judicial pronouncement of Lord Taylor of Gosforth in R v Derby Magistrates’ Court; ex parte B. Olivia Grosser-Ljubanovic Thesis submitted for the degree of Doctor of Philosophy Adelaide Law School The University of Adelaide April 2018 Contents CONTENTS Contents ............................................................................................................. iii Abstract ............................................................................................................. vii Declaration ......................................................................................................... ix Acknowledgements ............................................................................................ xi List of Publications........................................................................................... xiii Chapter I: Introduction ........................................................................................ 1 I Significance and Limits of this Study ............................................................... 4 II Methodology .................................................................................................. 6 III Structure ................................................................................................... 7 Chapter II: Derby: The Ultimate Arbiter of Legal Professional Privilege ........... 11 I Introduction ................................................................................................... 11 II Legal Professional Privilege: Historical Underpinnings ................................. 12 A Wigmore on the Evolutionary Path of Legal Professional Privilege ....... 12 B Bentham, Rome and the Origins of Legal Professional Privilege ........... 21 III Genesis Of The Privilege: The Scholarly Literature Surrounding Bentham and Wigmore ........................................................................................................... 26 IV Conclusion.............................................................................................. 29 Chapter III: Legal Professional Privilege: A Judicial Uncertainty ...................... 32 I Introduction ................................................................................................... 32 II Narrow or Broad: The Scope of Privileged Communications in Balabel v Air India.................................................................................................................. 34 A The Benthamic Principle ....................................................................... 36 III A Divergence of Judicial Authority .............................................................. 45 A Balabel: The Facts ................................................................................ 45 B Lord Taylor and the Authorities that Influenced Him in Balabel ............ 50 IV A Privilege For Other Professions .............................................................. 59 A Duchess of Kingston & Exclusivity of Legal Professional Privilege ...... 60 B Bentham and Wigmore on Privileged Relations..................................... 65 C R v Umoh Mfongbong ......................................................................... 70 V Conclusion ................................................................................................... 74 Chapter IV: The Limits and Exceptions to Legal Professional Privilege ............ 77 Table of Contents I Introduction ................................................................................................... 77 II Privilege and the Crime-Fraud Exception ...................................................... 78 A Bentham Vindicated.............................................................................. 80 B An Impossible Conspiracy .................................................................... 89 III Wigmore on Waiver: The ‘Fairness’ Factor ................................................. 93 IV Natural Justice and Legal Professional Privilege: Limitations and Exclusions .......................................................................................................................... 98 A Goldman v Hesper ................................................................................ 98 B Burnell v British Transport Commission ............................................. 103 C Tanap v Tozer ..................................................................................... 105 D General Accident Fire and Life Assurance Corporation Ltd v Tanter .. 106 E Consequences for Voluntary and Involuntary Waiver of Legal Professional Privilege .............................................................................. 108 V Conclusion ................................................................................................. 114 Chapter V: The Application of Legal Professional Privilege in Civil and Criminal Law .................................................................................................. 117 I Introduction ................................................................................................. 117 II Privilege in Civil and Criminal Proceedings ............................................ 119 A Privilege: A Threshold Question ...................................................... 121 B Bentham on Legal Professional Privilege and Criminal Justice .......... 125 C Wigmore on Legal Professional Privilege and Criminal Justice ......... 134 III Legal Professional Privilege: weighing the harm to innocence .............. 148 A Meehan v H M (Adv) ......................................................................... 154 B Legal Professional Privilege in Civil Litigation ................................. 162 C R v Inland Revenue Commissioners; Ex parte Taylor (No 1) ............ 163 IV Conclusion ................................................................................................ 169 Chapter VI: Absolute Privilege: A Legal Fiction ............................................. 173 I Introduction ................................................................................................. 173 II Derby: A Fallible Pronouncement ............................................................ 174 A The ‘Absoluteness’ Justification ......................................................... 174 B The House of Lords’ Formulation ....................................................... 176 III Bentham and Wigmore on Absolutism .................................................. 181 A Derby and the Commonwealth Authorities ........................................ 185 B The Weight of Authority ................................................................ 196 iv Table of Contents IV Privilege: Fundamental Right and a Matter of Substance ...................... 206 A AM & S Europe: A Global Community ............................................... 207 B Derby & AM & S: The Common Denominator .................................... 210 C Lord Taylor’s Absolutism: A Rebuttable Presumption ........................ 213 V Conclusion ................................................................................................. 223 Conclusion: A Reflection on Lord Taylor and Absolutism ............................... 226 I Lord Taylor of Gosforth: A Judicial Legacy ................................................. 226 II Bentham, Wigmore and their Influence on Lord Taylor of Gosforth............. 230 III Legal Professional Privilege in the Post-Derby Era .................................... 232 Bibliography ................................................................................................... 237 A Articles/Books/Reports ....................................................................... 237 B Cases .................................................................................................. 303 C Legislation .......................................................................................... 331 D Treaties ............................................................................................... 337 E Other ................................................................................................... 338 v Abstract ABSTRACT R v Derby Magistrates’ Court, ex parte B represents a pivotal point of 20th- century cases on legal professional privilege. This thesis argues that in that case, Lord Taylor misapplied the principles with respect to the absoluteness of the privilege. This decision, made at the highest level of the English judicial system, contradicted Benthamic and Wigmorean teachings by placing the nature of legal professional privilege beyond doubt. Through an exploration of the works of Jeremy Bentham and John Henry Wigmore, this thesis analyses the extent to which legal professional privilege evolved as a result of their perspectives and argues that Derby’s sweeping pronouncement ultimately diverged from their philosophies. In attempting to limit the breadth of the privilege, or, in the alternative, abolish it altogether, Bentham and Wigmore sought to promote justice over concealment and instituted a dialogue about the parameters in which the privilege does, or should, operate. Both scholars shared similar sentiments about the privilege and assigned the highest priority to reaching the correct decision in court proceedings. This common thread winds its way through the commentaries of Bentham and Wigmore. The continuing significance of these scholars
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