Proceedings were later issued on behalf of the baby. In the course of those proceedings, the plaintiff's lawyers asked for discovery of all relevant documents held by the hospital. The hospital said that the nurses' statements were privileged and could be withheld from the plaintiff's lawyers. The High Court and the Supreme Court both disagreed with the hospital and held that the documents were not privileged and had to be shown to the plaintiff's lawyers. Most documents are not privileged Many people incorrectly believe that a document is privileged simply because it was written after an accident.
Privilege is interpreted restrictively by the courts.
In general a document is only privileged if it is produced for the dominant purpose of seeking legal advice from a practising lawyer in respect of actual or contemplated litigation. A document may be prepared for several purposes. However, it will only be privileged if the dominant purpose for which it was written was for seeking legal advice. Examples of documents that clearly are privileged are statements with the defence of legal proceedings predominantly in mind, such as statements prepared at the request of or by solicitors. When preparing this type of statement it is sensible to preface it with a sentence which makes it clear that it is prepared with legal proceedings in mind.