Legal professional privilege, also known as attorney-client privilege, is an important concept to keep in mind with regard to any situation where litigation has been commenced or is imminent. In terms of this doctrine, evidence which is otherwise admissible may be rendered immune from disclosure to the other side on the grounds that these are confidential communications between an attorney and his or her client. While the legal rules relating to disclosure and privilege are mostly settled in our law, there is a somewhat ongoing misconception that the mere qualification of any document or communication as being 'confidential' or 'without prejudice' automatically renders the privilege applicable, so exempting the same from being discovered in the usual legal course. Another related aspect which bears comment is the status of communications between a client and his insurer as well as other agents for the purposes of discovery.
In order for the privilege to apply, the legal advisor must have been acting in a professional capacity as the client's attorney. In the context of insurance, the issue arises as to whether an insurance claims handler who is also a qualified lawyer meets this criterion. There is case law to the effect that where a qualified lawyer is appointed by an entity, and he fulfills the same duties as a lawyer in private practice, professional privilege will attach to communications between this in-house legal advisor and his client provided all other requirements are met.
The case of Euro Shipping Corporation (1979) 3 All SA 505 (C) aptly illustrates the applicable considerations. One of the issues to be decided was whether a certain class of documents could be regarded as privileged as a result of them being referred to as "confidential communications between plaintiff and its insurer in regard to contemplated or pending litigation." This referred to certain correspondence between General Marine Agency (Plaintiff's agent) and the West of England Ship Owners Mutual Protection and Indemnity Association. It was held that the privilege did not apply to these documents, and that their qualification as 'confidential' does not render them immune from discovery. Privilege will only be upheld in respect of such communications where they "came into existence for the purpose of providing information for use by the insured's solicitors in the conduct of such litigation." Insurers should therefore take note that in order to prevent unwanted disclosure of confidential documents and communications passing between themselves and their clients, the following two requirements among others need to be met:
a. The relevant documents must have come into existence after litigation was contemplated; and
b. The insurers must have intended the documents to be handed to the insured's attorneys for purposes of being used in the contemplated litigation as well as for advising the insured.
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