Legal professional privilege — what do we make of it in jurisdiction Malta? The anchors : part 2

Abstract

This article is a continuation of Part 1 which appeared in the previous issue of Trusts and Trustees. The concluding note there was that Privilege in Malta is one and unitary, encompassing without distinction litigation Privilege and legal advice Privilege. Part 2 argues that Malta has received various influences over time on Privilege, not least the European Convention on Human Rights and the EU. However, the law on Privilege should never lose sight of the fundamental and defining link between the Maltese Code of Civil Procedure and the traditional Common Law rules on evidence—these should remain, partly at least, a defining anchor of the Maltese Law on Privilege. This article argues that Privilege extends to all materials communicated between counsel and client in the proper course of professional activity. It also reviews areas such as disclosure and Privilege, asks whether Privilege is a substantive rule of law or one of evidence. Other areas considered are loss of Privilege, partial waiver thereof, secondary evidence referred to in otherwise Privileged material and finally inadvertent disclosure. The conclusion is that Privilege is a deep-seated rule of law, procedure and practice of which Advocates and the Judiciary remain the gatekeepers.