The Professional Secret, Confidentiality and Legal Profession ...

34
sense, or because a statute imposes a positive duty of
disclosure.
3D. Since the law of "legal professional-privilege" has been
developed by the judges and is not dependent on the
interpretation and application of statutes or codes, it
cannot be stated with such precision as the law of the Six. 1
Each case has been decided on its own facts. The law is
therefore neither static nor precise.2 This has the
advantage that the law is capable of development by the
courts to meet new situations. On the other hand, since
Parliament can override the courts, the scope of legal
professional privilege is liable to be curtailed by statute
at any time and in any way.
1. The volume of case-law is enormous. No
attempt is made to provide detailed
references here.
For England see Halsbury's Laws of England,
3rd Edition, vol. 12, paras. 56-70;
Phipson on Evidence, 11th Edition, para.
585 ff.; A Guide to the Professional
Conduct of Solicitors, published by the
Law Society, 1974, Chapter 2.
For Scotland, see Green's Encyclopaedia of
the Laws of Scotland, 2nd edition, Vol. 4,
p.347 ff~ Walker on Evidence, p.4l3 ff.
2. As an example of this lack of precision, it
is not certain whether, in Scotland,
communications to ministers of religion
are protected by "privilege" or not. (See
Green's Encyclopaedia, loco cit., §799).
They are not protected in England. (See
for example, Wheeler -v- Le Marchant, 1881,
17 Ch.D.675, per Jessel, M.R., at p.68l).
31. Although the "UK system" has hitherto been treated as a single
system, the law of Scotland is not the same, either in origin
or /