Legal professional privilege should be reformed to prevent corporations abusing it to cover up wrongdoing, leading legal academics have said.
A working paper by Andrew Higgins of the University of Oxford and Richard Moorhead (pictured) of the University of Exeter concluded that privilege should be qualified to give judges the discretion to lift it in certain cases.
Judges should also be more inclined to consider challenges to privilege and stop accepting at face value assertions that material is privileged. Such changes would improve the operation of legal professional privilege and strengthen ethical standards to prevent misuse by lawyers.
Professor Higgins said: ‘The current "cautious" approach of courts to reviewing privilege claims including, in particular, greater use of inspection in camera by the courts or similar approaches for suitable cases should be reversed. Ultimately, however, courts should be given the power to override privilege claims by corporations where it is in interests of the administration of justice.’
The report acknowledged the value of legal professional privilege for allowing clients to talk freely to a lawyer knowing that their confidences would not be revealed without consent. But it identified growing concerns about the potential for corporations and public bodies to make broad and sometimes unmeritorious privilege claims.
This is particularly the case for the government, where privilege may be used to avoid disclosure of information where there is a legitimate public interest.
The report, produced as part of a project for learning lessons from the Post Office scandal, said this miscarriage of justice could be held as an example of privilege being ‘speciously asserted’, perhaps even to the extent of creating a conspiracy to pervert the course of justice.
It was suggested that the current limits of legal professional privilege encouraged the Post Office to prevent the release or production of documents, some of which might have helped to uncover the scandal of so many innocent sub-postmasters being wrongly convicted.
Based on lawyers’ advice, Post Office staff did not write down adverse information that might later be disclosed, routinely labelled documents as legally privileged and sent documents through legal advisors solely to make them privileged. Documents were designed in such a way as to make them look like they were drawn up as preparation for litigation.
‘Lawyers appearing before the Inquiry to defend the practices above sought, in the main, to suggest that their handling of legal professional privilege was a normal part of asserting their client’s rights,’ added the report.
‘Criticisms of that view might suggest, at the gentler end of the spectrum, that privilege was mismanaged or, to increase the level of criticism significantly, that privilege was over-claimed, blinding the Post Office (and its lawyers) to its other obligations.’
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