Liverpool Solicitors

WHAT IS THE SIGNFICANCE OF LEGAL PRIVILEGE

Legal professional privilege protects against disclosure of documents in legal proceedings. Written and oral communication passing between a party and solicitor and communications passing between the solicitor and a third party are privileged from inspection provided that certain requirements are met.

The two distinctive types of legal professional privilege are legal advice privilege and litigation privilege

Legal advice privilege

• This privilege applies where there is confidential communication between client and solicitor for the sole or dominant purpose of giving or obtaining legal advice.
• If the communication is not confidential the privilege does not apply.
• It applies to legal assistance relating to legal rights, what should be prudently done, obligations or remedies.

Litigation privilege

• Communications passed between client or solicitor and third party are privileged from inspection provided that they come into existence after litigation is contemplated or has commenced and they are made with a view to the litigation for the dominant purpose of giving or receiving advice.
• The privileged documents may include expert reports or witness statements obtained by a solicitor
• Litigation privilege does not apply to internal procedures.

Common interest privilege

Solicitor should be contacted, if privileged information is shared with other people with whom there is a common interest. For the privilege to apply you should:

• Identify the common interest; and
• Explain to the third party that the document is being shown in confidence and is privileged.

The privilege may be waived by the client not the solicitor. Once a privileged document is served on the other party, the privilege is waived.

WHAT IS PASSING OFF ?

• If the goods or services of one person are represented as those of somebody else, it means that the person is guilty of passing-off. The law that governs passing-off is tort.
• In order to establish passing-off, there must be goodwill, misrepresentation that deceived the customer, and damage
• The goods or services concerned must have goodwill. The reputation must be among customers and relate to features such as name, image or shape.
• The misrepresentation made by the defendant in the course of trade must lead to confusion of customers that the goods offered by him are in fact the goods or services of the other company.
• Claimant must show damage, or the likelihood of damage.
• Statutory tort is created by the Trade Practices Act which can accompany common law tort. The Act does not allow for any misrepresentations made by the businesses. In order to prove passing-off, the claimant need only show that the misrepresentation was made to the customer in the course of the trade and it led him to confusion. There is no need to prove that good will exists.