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Requirements for legal advice privilege

The test for legal advice privilege is to establish whether the communication in question was made confidentially for the purpose of legal advice – construing such purposes broadly. That breadth was emphasized by the House of Lords, which has stated that the policy justification for legal advice privilege rests not simply on the right of the individual to obtain confidential legal advice, but also on the public interest in the observance of law and the administration of justice. The House therefore decided that legal advice privilege was to be given the scope commensurate with these wide policy considerations. To achieve this end, legal advice could not be narrowly construed to be limited to advice on the client's legal rights and liabilities. It would be broadly construed, to include advice as to what should prudently and sensibly be done in the relevant legal context. Where there was doubt about the relevant legal context, the court should ask (a) whether the advice related to the rights, liabilities, obligations or remedies of the client under either private or public law; and, if so, (b) whether the communication fell within the policy justification for the privilege.