Dominant purpose test proves difficult to pass

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By Sarah Andrews

Here we consider litigation privilege and the dominant purpose test. Litigation privilege stems from a principle that those engaged in or contemplating litigation should be free to gather evidence without a requirement to disclose that evidence to opponents.

For litigation privilege to apply, material must satisfy the four following criteria: it must be confidential; it must be a communication between a lawyer (acting in a professional capacity) and his client or between the lawyer (acting in a professional capacity) or his client and a third party or be material created by or on behalf of the client or his lawyer; it must be made for the dominant purpose of litigation; and litigation must be pending, reasonably contemplated or existing.

The ‘dominant purpose’ test is one of dominance rather than exclusivity. To establish dominance, it is necessary to determine whether the dominant purpose is litigation…

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