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28 September 2018

It’s a privilege

Litigation
Victoria

Asked

Litigation - Costs agreement/disclosure statement/invoices - Client legal privilege

Can a lawyer's costs agreement/disclosure statement and/or tax invoices be subject to privilege?

Answered

Thank you for the question.

The short answer is yes, but ‘privilege’ covers a lot of possible evidentiary exclusions, which may differ depending on which jurisdiction applies.

In Victorian state courts what is usually called ‘legal professional privilege’ is actually client legal privilege under the Evidence Act 2008 (Vic) – see ss 117 – 126. This Act is part of the Uniform Evidence Law which applies in the Australian Capital Territory, New South Wales, Northern Territory, Tasmania and Victoria. The privilege is so called in the Acts because it is the client’s privilege, not the lawyer’s, and only the client can claim or waive the privilege.

If the relationship of lawyer and client exists as defined in s 117 and the costs agreement/disclosure statement falls within the definition of confidential communication in that section, then it will attract client legal privilege, whether actually delivered to the client or not, if:

  • the document was created for the dominant purpose of the lawyer providing legal advice to the client, in which case it will be privileged under s 118, unless the client has waived privilege;

and/or

  • the document was created for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party, in which case it will be privileged under s 119, unless the client has waived the privilege.

Privilege can be lost (‘waived’) in several ways – see s 121 and s 122. Essentially the client may waive privilege if they act in a way that is inconsistent with claiming it. For costs agreements, this might constitute relying on the document to support a claim for costs against the other party. It is clearly inconsistent for a claimant to ask another party to pay the claimant’s costs, but to object to the other party seeing the document upon which the calculation of those costs is based. That is just one example; in each case the determination of any waiver will depend upon the circumstances.

Different considerations can apply in Federal jurisdictions, where the common law may continue to apply, particularly in interlocutory proceedings.

Regards

Mentor