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Privileged legal material
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139. (1) Subject to subsection (2), nothing in this Chapter shall compel the disclosure by any person of privileged legal material or authorise the taking of privileged legal material.
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(2) The disclosure of information may be compelled, or possession of it taken, pursuant to the powers of this Chapter, notwithstanding that it is apprehended that the information is privileged legal material provided the compelling of its disclosure or the taking of its possession is done by means whereby the confidentiality of the information can be maintained (as against the person compelling such disclosure or taking such possession) pending the determination by the court of the issue as to whether the information is privileged legal material.
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(3) Without prejudice to subsection (4), where, in the circumstances referred to in subsection (2), information has been disclosed or taken possession of pursuant to the powers in this Chapter, the person—
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(a) to whom such information has been so disclosed, and
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(b) who has taken possession of it,
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shall (unless the person has, within the period subsequently mentioned in this subsection, been served with notice of an application under subsection (4) in relation to the matter concerned) apply to the court for a determination as to whether the information is privileged legal material and an application under this subsection shall be made within seven days after the disclosure or the taking of possession.
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(4) A person who, in the circumstances referred to in subsection (2), is compelled to disclose information, or from whose possession information is taken, pursuant to the powers in this Chapter, may apply to the court for a determination as to whether the information is privileged legal material.
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(5) Pending the making of a final determination of an application under subsection (3) or (4), the court may give such interim or interlocutory directions as the court considers appropriate including, without prejudice to the generality of the foregoing, directions as to—
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(a) the preservation of the information, in whole or in part, in a safe and secure place in any manner specified by the court,
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(b) the appointment of a person with suitable legal qualifications possessing the level of experience, and the independence from any interest falling to be determined between the parties concerned, that the court considers to be appropriate for the purpose of—
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(i) examining the information, and
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(ii) preparing a report for the court with a view to assisting or facilitating the court in the making by the court of its determination as to whether the information is privileged legal material.
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(6) An application under subsection (3), (4) or (5) shall be by motion and may, if the court directs, be heard otherwise than in public.
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(7) In this section—
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“court” means the High Court;
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“information” means information contained in a document, a computer (including a personal organiser or any other electronic means of information storage or retrieval) or otherwise;
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“privileged legal material” means information which, in the opinion of the court, a person is entitled to refuse to produce on the grounds of legal professional privilege.
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