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This book is only available in PDF format

Author: Stephen Caradus
Published: 17 July 2025
Pages: 35

Introduction

Why this topic?

Privilege is at the bedrock of our legal system. The principle’s underpinnings are well established and well known (and are even incorporated into our rules of professional conduct). Judges speak of privilege as “absolute”, a “human right”, a “simple principle”1 that has existed since the “16th century” where the balance in favour of privilege was struck “once for all”. Statements such as this can create the impression that privilege is static – like a statute carved from marble hundreds of years ago – fixed and unchanging – for better or worse.

There is merit to that view. Judicial observations about privilege from a hundred years ago remain applicable today. So, why this topic? Because longevity is not the same as consistency. In that regard privilege is more like clay – its substance may not have changed in centuries – but it is malleable. Its form can be moulded and reshaped to suits its environment. Its form has nuance, and is dynamic, being shaped by trends and developments in the law. In that regard, there is much in our rules of legal professional privilege that a 16th century judge would not recognise, or even a judge from the 1960s.

All practitioners will know the substance of privilege (since it forms part of our professional obligations) but many are not acquainted with its forms, which have been reshaped and moulded by a number of recent decisions. Moreover, a familiarity with the substance of privilege may not be enough to inform practitioners, on a very practical level, whether privilege can or should be asserted. Mistakes can have serious repercussions for both client and practitioner.
 

Content outline

  • Introduction
  • What is privilege?
  • New Zealand’s approach to privilege
  • Without prejudice discussions
  • Confidentiality
  • Part Two Legislation
  • Legal advice privilege 
  • Litigation privilege 
  • Without prejudice or settlement privilege 
  • Waiver of privilege 
  • Joint and successive privilege 
View contents page
CARADUS Stephen 150x175    
Stephen Caradus
Saunders & Co
Christchurch		    

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