oa Comparative and International Law Journal of Southern Africa - Privilege and confidentiality in Commonwealth law

Volume 18, Issue 3
  • ISSN : 0010-4051



Striking developments relating to the law of privilege have taken place in recent times throughout the Commonwealth. Judicial initiative has resulted in a transformation of the scope of crown privilege which has required reappraisal in the light of contemporary trends centred on the rapidly expanding frontiers of state acitivity. While extension of the law has been affected for the most part by the cautious use of analogy, traditional attitudes have been modified and in some areas discarded in keeping with the needs and priorities of a different age. Apart from the exclusionary principles forged in the setting of crown privilege, one of the innovative features of commonwealth law pertains to the imaginative development of a head of public interest privilege based on the preservation of confidentiality in the context of fiduciary relationships. The distinguishing characteristic of this rubric of the law of privilege is that the claim of confidentiality is asserted not on behalf of the executive branc of government but by one of the litigants. Although there is slender support for the denial of a public interest privilege conceived in these terms, the balance of modern judicial authority in the Commonwealth explicitly recognises gradations of public interest privilege which are not catered for by the structural framework of the traditional law. The purpose of this article is to examine some selected aspects of the emerging law in relation to central policy objectives.

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