Witness statements obtained by a client's agent from independent third-party witnesses will not be 'confidential documents' under s 117(1) of the Evidence Act 1995 unless there is evidence of an express or implied obligation not to disclose their contents. An uncommunicated internal policy to confine disclosure does not create such an obligation. The rationale for litigation privilege — that a party should not be forced to prepare its case knowing documents may be disclosed — cannot itself supply the confidentiality required by the statutory definition, as this would involve circular reasoning. The question left open is whether use of a form containing a privacy notice would suffice to create an obligation of confidentiality.
The full text is available to signed-in members, including the 41 later cases that cite this judgment.
2 of the 41 citing cases carry a classified treatment. How each court treated it is available to signed-in members.