May 25, 2018

Privileged Communication: Does The Law Offer Sufficient Protection? | Zeniath Abiri


Privilege is a rule of evidence that allows the beneficiary of the privilege to refuse to disclose information or provide evidence about a certain subject or to bar such evidence from being disclosed or used in a judicial or other proceeding. This principle was judicially defined in B v. Auckland v. Society,[1] as a right to resist the compulsory disclosure of information. Privilege acts to protect a witness from answering questions in evidence, and/or entitles a party to refuse to produce documents for inspection, during the course of legal proceedings. This doctrine is thus, not just a rule of evidence, but is also a substantive legal right. It follows that it would amount to a breach of this fundamental legal right, for a court to draw any adverse inference, from the making of a valid claim to privilege.[2]


Privilege communications is protected in various forms and in varying degrees, in different jurisdictions of the world. Part 3.10 of the Australian Evidence Act 2011,[3] deals with privileges and by Sections 117-128 thereof, the following privileges have been identified; (a) Client legal privilege, (b) Journalist privilege, (c) Religious confession privilege and (d) Privilege against self-incrimination.

In Nigeria, Sections 164 – 176 0f the Evidence Act of Nigeria 2011[4] and Section 16 of the Freedom of Information Act, L.F.N 2011,[5] provides for privileged communication. A combined reading of those sections, reveals that the following types of privilege exist in Nigeria; (a) Spousal privilege. [6](b) Judicial privilege,[7] (c) Legal profession privilege,[8] (d) Privilege against self-incrimination,[9] (e) Health worker – patient privilege ,[10](f) Journalist privilege,[11] and (g)Without prejudice privilege.[12]

While some jurisdictions offer legal protection for communications between Priest and penitent, Nigeria offers no such protection. Such protection is only offered by the rules of the profession, where such rules exist.

In the rest of this paper, I focus on the three most prominent instances of privilege, as these instances cut across most jurisdictions of the world.

Legal Profession Privilege.

Legal professional privilege seeks to protect communication between a client and his lawyer. It is based on the need to obtain legal advice, freely, safely and sufficiently. The rationale for the rule of legal professional privilege, was given in Anderson v. Bank of British Columbia[13], in the following words; “….a man, in order to prosecute his rights or defend himself,…should have resource to the assistance of professional lawyers….he should be able to place unrestricted and unbound confidence in the professional agent, and the communication he so makes, should be kept secret, unless with his consent, that he should be enabled to properly conduct his litigation.”[14]

Although, privilege belongs to the party and not the lawyer, the right of privilege is most often asserted by the lawyer.[15] This privilege is also protected by Rule 19 (1) and (2) of the Rules of Professional Conduct for Legal Practitioners, 2007, in Nigeria (“R.P.C Nigeria”).[16]

Duration of Legal Profession Privilege: The rule is generally, once a privilege, always a privilege and once privilege is established, the mouth of the lawyer is ‘shut forever’.[17] This position was reaffirmed in Nationwide Building Society v. Various Solicitors,[18] Blackburn J. took a differing view in where he held that the right to privilege is absolute and the lawyer’s mouth is indeed, ‘shut forever’. In the earlier case of R. v. Derby Magistrates Court Ex P. B.,[19] Lord Nicholls said obiter, that in circumstances where the client has no interest in asserting the right to privilege and the enforcement of the right would be seriously prejudicial to another, in defending a criminal charge or in some other way, he cannot expect the law to protect the right. I agree more with the Lord Nicholls view, as same seems to ensure that the interest of justice is better served, which is the whole essence of the legal system. It is important to note that the duration of this form of privilege, continues even after employment has ceased.[20]

Categories of Legal Professional Privilege: There are basically two categories; (a) Legal advice privilege: protects communication between a client and his lawyer, which are part of the process of the giving and getting of legal advice, without the existence or contemplation of legal proceedings; (b) Litigation privilege only covers communications made when there a pending litigation or a reasonable expectation of one. This form of privilege protects information which comes into existence, for the purpose of gathering evidence for legal proceedings and usually, includes communications made to 3rd parties, for this purpose.

Instances where information amounting to Legal Profession Privilege may be admitted.

By Rule 19 (3) of the R.P.C Nigeria, a lawyer may reveal confidences or secrets with the consent of the client or clients affected, but only after a full disclosure to them, in the following instances;

confidences or secrets when permitted under the rules of the R.P.C Nigeria, or required law or a Court order;

where the privileged information reveals an intention of his client to commit a crime and the information necessary to prevent the crime;

secrets necessary to establish or collect his fee or privileged communication necessary to defend himself or his employees or associates against an accusation of wrongful conduct, and

where a court finds that the interest of the public in having information disclosed is greater and far more vital than protecting the attorney-client communication.[21]

This is the general position in nearly all jurisdictions worldwide.

Without Prejudice” Privilege.

This refers to written or oral communications, which are made for the purpose of a genuine attempt to settle a dispute, without having to recourse to litigation. Such communications are not admissible in evidence.[22]

In Cutts v. Head,[23] Oliver C.J said the rationale for this rule, is to encourage disputing parties, to as much as possible, settle their disputes, without recourse to litigation, and in doing so, parties should not be discouraged by the knowledge that what is said in the course of such negotiations, may be used to their prejudice, in the course of legal proceedings.[24]

Information disclosed without prejudice may be given in evidence in the following circumstances:

When the court needs to determine whether the parties reached a compromise/agreement.

To determine whether an agreement apparently concluded by the parties, should be set aside on the grounds of misrepresentation, fraud or undue influence.

To establish a clear statement which is made by one party to the negotiations, on which the other party to the negotiations is to act and does infact act, may be admissible, as giving rise to estoppel.

To explain delay or acquiescence.

To prevent the inappropriate use of privilege. Such as where a party cites the negotiations as reason for the delay, the other party may produce the communications to show they do not justify the delay.

Where the word, “without prejudice save as to cost”, is used, the communications may be admitted on questions as to cost.[25]

In addition to the above, communications made ‘without prejudice’ will be admitted where the dispute has been resolved or the parties agree to waive privilege.

Privilege against Self-Incrimination.

No person is bound to answer any question in legal proceedings, if the answer thereto, may expose him to any criminal charge or penalty. It also encompasses the accused person’s right to silence. However, where the accused in a criminal trial chooses to give evidence, he may be asked any question in relation, in cress examination, irrespective of the fact that such questions tend to incriminate him with respect to the offence charged. He may not however, be asked questions tending to show he committed other offences, save for limited situations[26]. The privilege allows a person to refuse to incriminate himself or his spouse.[27]

Because this form of privilege is usually claimed after the holder has been sworn as a witness, he cannot refuse to attend court, for fear of incriminating himself. [28]

It is not enough for the witness to simply assert that answering the question incriminates him. The court must be satisfied that there is reasonable ground to apprehend such danger to him, from his being compelled to answer the question.[29]

Transfer of the Right of Privilege.

Although unusual, where contractual rights transferred or assigned, includes a claim to privilege, the claim may also be asserted and enjoyed, by the assignee or successor-in-title.

Conclusion.

It is my opinion that despite the exceptions to the rule on privileged communication, the principle offers sufficient protection for those it seeks to protect. As it concerns Legal Profession Privilege for instance, The R.P.C Nig. makes it professional misconduct, for a legal practitioner to breach this duty, and entitles the client to sue such a legal practitioner, and/report the legal practitioner to the relevant body, for appropriate disciplinary measures to be taken. Even though exceptions to the admissibility of privileged communications exist, they are limited in scope and applied very strictly. It is a right treated with highest regards and the need to waive it must outweigh the need to protect the right, unless where the holder expressly waives it.





[1] [2003] 2 A.C. 736, para. 67,

[2] See Wentworth v. Lloyd [1864] 10 H.L.C. 589.

[3] (hereinafter referred to as the E.A Aust.)

[4] (hereinafter referred to as the E..A Nig.)

[5] (subsequently referred to as the F.I.A Nig.)

[6] S. 164, E.A. Nig.

[7] S. 165, E.A. Nig.

[8] .S. 170-173 E.A. Nig, S.16 (a) F.I.A. Nig.

[9] S. 176 E.A. Nig.

[10] S.16 (b) F.I.A. Nig.

[11] S. 16 (c), F.I.A Nig.

[12] with respect to disclosures made in the course of negotiations to settle a dispute. S. 28 E.A. Nig.

[13] [1875-1876] L.R. 2 Ch. D. 644 @ 649

[14]   Horn v. Richard (1963)2 All N.L.R. 40 @ 41 and Three rivers D.C v. Bank of England (No. 5) [2003] Q. B. 1556, para. 39.

[15] (except in cases where the claim of privilege is against self-incrimination).

[16] S.126 (b) E.A. Aust. (It must be noted that while privilege protects documents from inspection, it does not necessarily protect them from disclosure).

[17]  The Agis Blaze [1986] 1 Llyods Rep. 203 CA.

[18] [1999] P.N.L.R., 52 @ 69

[19] [1996] 1 A.C., 487

[20]   S. 170 (3) of the E.A. Nig..

[21]  S. 25 (1)(c) F.I.A Nig..

[22] GPI Leisure Corporation v. Yuill [1997] 42 N.S.W.L.R., 225.

[23]  [1984] Ch. 290 @ 306

[24] See also, the Nigerian case of Chief  Oredin v. I.P.H. El Khalil & Ors. [1978] 2 OY.S.H,C. 325.

[25] See Unilever v. Proctor & Gamble 28 [2001] 1. All E.R., 783, per Robert Walker L.J.

[26] Documentary Evidence Charles Hollander Q.C. Sweet & Maxwell, (9th edition), para. 17-01. See also, Section   36 of the Constitution of Nigeria 1999 (as amended)

[27] See Blunt v. Park Lane Hotel Limited [1942] 2 All E.R. 187 @ 189.

[28] See Boyle v. Wiseman [1855] 10 Exch. 647. published by Sibon Books Ltd,

[29] See R. v. Coote [1873], L.R. 4 P.C. 599. See also, Law & Practice of Evidence in Nigeria, by Afe Babalola, 2001 (ch 9 p. 173).


Zeniath Abiri

Managing Partner
Abiri & Mustafa Legal Practitioners.

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