Legal professional privilege in the 21st Century: identifying failures to develop this evidential rule to meet the challenges of modernity and presenting solutions aligned to its rationale.

Mitchell, Rebecca (2022) Legal professional privilege in the 21st Century: identifying failures to develop this evidential rule to meet the challenges of modernity and presenting solutions aligned to its rationale. Doctoral thesis, Northumbria University.

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Abstract

Legal professional privilege has a significant and far reaching impact on society and is of fundamental importance to all lawyers.

Individuals, businesses, professions, regulatory bodies and Government are all affected by the operation of legal professional privilege, the vagaries of its application in certain contexts and situations where it is effectively undermined. They are also significantly affected where this evidential rule fails to stay true to its rationale through stagnation or circumscription rather than benefitting from inventive, modern, judicial interpretation or legislative change.

The publications which form the basis of this submission span six years and form a significant, coherent and original contribution to knowledge and understanding of legal professional privilege. Using a combination of doctrinal, comparative and socio-legal methodological approaches as appropriate, these important and timely articles advance the field of study by identifying uncertainties and anomalies in the parameters of legal professional privilege in a range of contexts, both domestic and international and in relation to both its limbs: legal advice privilege and litigation privilege. The uncertainties and anomalies identified coalesce around the theme of a failure to develop this evidential rule to address effectively developments in both modern legal and regulatory practice, in alignment with its rationale. Each publication makes an original contribution and taken together as a whole provides a unique lens into the operation of legal professional privilege in the 21st Century, offering valuable insight into the challenges posed by its operational parameters and proposing suitable solutions.

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