Litigation Privilege

Litigation privilege has become unfashionable. It is under attack on multiple fronts throughout the common law world! In the United Kingdom, perhaps the most notable inroad on the privilege is that made by the House of Lords in Re L (A Minor) (Police Investigation: Privilege).2 In that case it was held that the privilege is an incident of adversarial proceedings and that, consequently, it did not obtain in respect of material generated for the purposes of proceedings that were not predominantly adversarial in nature. There are signs that more radical restrictions are to come. In Three Rivers District Council v Governor and Company of the Bank of England (No. 6) Lord Scott of Foscote foreshadowed that a fundamental reconsideration of litigation privilege may be necessary

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