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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Generally, Garnishee proceedings is done in two different stages. The first stage is for the garnishee order nisi, while the second stage is for the garnishee order absolute.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).