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#1 Posted : 16 November 2005 15:41:00(UTC)
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Posted By Tony Brunskill At a recent meeting a lawyer suggested that any document generated under legal privilege should not be handed over to the HSE. As a consultancy I am interested in who pays the penalty for obstructing the Inspector in such circumstances. He/She has the right to copy documents. The client has the right not to incriminate him/herself. The report is on the consultants file. The HSE inspector turning up at the consultant's office in the course of his/her investigation can therefore legally copy the document. To prevent him from doing so is an offence under s33. Let the games begin.
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#2 Posted : 17 November 2005 09:39:00(UTC)
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Posted By Adrian Watson Tony, Come on Tony, you didn't check, did you? HSWA74 S20(8) states "Nothing in this section shall be taken to compel the production by any person of a document of which he would on grounds of legal professional be entitled to withhold production on at discovery in an action in the High Court or, as the case may be, on an order for the production of documents in an action in the Court of Session." Now the really interesting question is what is a person entitled to withhold? It has been held that, as litigation can only be properly conducted by professional lawyers, it is necessary that a litigant should be able to have recourse to them in circumstances which enable him to place unrestricted confidence in the lawyer whom he consults and that the communications which he makes to that lawyer should be kept secret. Hence communications made to and from a legal adviser for the purpose of obtaining legal advice and assistance are protected from disclosure in the course of legal proceedings, both during the preliminary stages and at the trial. This privilege is quite separate from the defence of privilege which may be raised in an action of defamation in respect of words spoken or written between legal advisers and client. Any other communications as are reasonably necessary in order that the legal advice may be safely and sufficiently obtained are also protected, but in the case of communications to or from a non-professional agent or third party, such as a person who witnessed some event, the privilege only arises if litigation is threatened or contemplated. Any communications, verbal or written, passing between a party or his predecessors in title and his or their solicitors or other legal professional advisers are privileged from production for inspection, provided they are confidential and spoken or written to or by the legal adviser in his professional capacity and for the purpose of getting or giving legal advice or assistance, but not otherwise. A document coming into existence under these conditions is privileged even though it is not in fact communicated. So to answer the original question, how do you withold a consultants report on file? The answer is you don't because it is not privileged unless it was generated for legal advice in contemplation of legal proceedings. Regards Adrian Watson
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#3 Posted : 17 November 2005 10:01:00(UTC)
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Posted By Robert K Lewis Adrian places it in a nutshell - rather a large one though because it can be a complex issue. As a consultant I have to remind organisations that something is not privileged simply because the organisation places such a statement of privilege upon it. There are a number of protocols that have to be observed, and my colleagues and I spend much of our time creating these for companies and trying to recover those situations where it was not done properly. Bob
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#4 Posted : 17 November 2005 10:20:00(UTC)
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Posted By bigwhistle The trouble is that the absolute right to remain silent is no longer enshrined in law that was confirmed by the ECHR in 1996. Certain organisations such as the HSE and Inland Revenue appear to have more powers than the Police although summary execution is the possible exception. I think they are entitled to all documentation of fact but not opinion however they are not entitled to know what is discussed between client and lawyer. No doubt Frank will put me straight.
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#5 Posted : 17 November 2005 10:27:00(UTC)
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Posted By Robert K Lewis They are not entitled to any document held within correct legal privilege and to question an individual concerning any contents may actually be a breach of protocol by the enforcer. The right of silence is actually irrelevant to privilege - the existence of a document under privilege closes all the information contained. Questions of fact must be answered but not questions of opinion. Bob
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#6 Posted : 17 November 2005 11:04:00(UTC)
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Posted By bigwhistle Robert "They are not entitled to any document held within correct legal privilege" can you clarify when and what types of document qualify. For instance I wouldnt think a record of first aid treatment or a memo by the MD stating that fire drills were no longer affordable could be excluded.
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#7 Posted : 17 November 2005 22:30:00(UTC)
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Posted By Frank Hallett Hi folks I'm staying an extremely interested observer for the moment. The question has been answered as I would only far better. Ain't legislation grand in England & Wales? You couldn't write this stuff as fiction [oops - I mean the "law", not the responses]. Do the Scots have the same problems I wonder? The only area of H&S law that I find more confusing are the EU Directives that are squeezed through the translation machine into grammatically mangled versions of the languages of the 25 member states. Frank Hallett
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#8 Posted : 20 November 2005 11:19:00(UTC)
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Posted By kay moss Tony I'm wondering if I was at the same meeting in Cambridge last Tuesday. I have been looking into the subject ever since !! There's a fair bit of info on the HSE website. General comment - I'm surprised this isn't covered in the new level 6 NEBOSH diploma
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#9 Posted : 21 November 2005 11:09:00(UTC)
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Posted By Robert K Lewis Bigwhistle The Parliamentary reply is to refer you to the answer Adrian made at the first response to this thread. It is a sadly misunderstood area and yet it is one which ALL competent practitioners have to face at some point and like Kay I believe the syllabus in many courses is deficient in this and related areas such as interview management, negotiating with enforcers and other similar topic areas. I am not going further as part of my living is in providing these sorts of courses. It is certainly an area I would anticipate would be covered in any thorough Peer Interview. Bob
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