New Zealand Institute of Chartered Accountants v Clarke HC Auckland CRI 2008-404-83 [2009] NZHC 249; [2009] 3 NZLR 264; (2009) 19 PRNZ 246 (4 March 2009)

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI 2008-404-83}

NEW ZEALAND INSTITUTE OF CHARTERED ACCOUNTANTS

Appellant

v

STUART FRANCIS CLARKE

Respondent

Hearing: 23 September, 8 December 2009

Appearances: D M Hughes & J R F Cochrane for Appellant

B M Stainton for Respondent

Judgment: 4 March 2009

_{JUDGMENT OF KEANE J}

This judgment was delivered by Justice Keane on 4 March 2009 at 12 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

_Date:

_Solicitors:

Kensington Swan, Auckland for Appellant

Stainton & Chellew, Auckland for Respondent

NEW ZEALAND INSTITUTE OF CHARTERED ACCOUNTANTS V STUART FRANCIS CLARKE HC AK CRI 2008-404-83 4 March 2009

[1] On 11 December 2006, the New Zealand Institute of Chartered Accountants alleges, Stuart Clarke, not then a member of the Institute, committed an offence against s 14(1)(a) of the Institute of Chartered Accountants of New Zealand Act

1996. In a letter, dated 11 December 2006, to a case officer in the Disputes Tribunal, he used the initials ‘CA’ after his name. In this, the Institute contends, he induced the reasonable belief that he was a member of the Institute. It charged him with that offence.

[2] On 10 March 2008 that charge, which rested on the admissibility of the letter, was dismissed in the District Court, Auckland. The letter was held to be inadmissible. The purpose of the letter, the Judge held, was to advance a settlement offer without prejudice and Mr Clarke enjoyed the privilege given by s 57(1) of the Evidence Act 2006. He was entitled to an order under s 53(4) preventing the Institute from relying on the letter. There was no basis for disallowing his privilege under s 67. The purpose of the letter was not on its face dishonest. Nor was it to advance the commission of any offence.

[3] On 23 September 2008, the date on which the Institute’s appeal was first set down for hearing, Mr Clarke objected to the case stated. It did not, he contended, state the issues to be decided. The Institute had not served the draft case on him when filing it, as s 107(3) of the Summary Proceedings Act 1957 called for. The Judge had not before signing it elected to hear from him. The case she settled was not one to which he had subscribed. I agreed that the issues needed to be restated. I did not remit the case to the Judge. I directed that counsel settle the issues: R v McNaughton [1970] NZLR 889, Haslam J.

[4] When the hearing resumed on 8 December 2008 four questions had been agreed and one had not. The four agreed, which I now state in my own words, begin with this question. Was the letter, dated 11 December 2006, addressed to a case officer of the Disputes Tribunal, marked ‘without prejudice’, expressed to be confidential and to be an attempt to settle a dispute before the Tribunal that day, a communication capable of attracting privilege under s 57(1) of the Evidence Act

2006?

[5] The second and third questions go to the scope and range of any privilege. If the content of the letter was capable of attracting privilege under s 57(1), did Mr Clarke’s signature to the letter and the way in which he designated himself also attract privilege? If the letter as a whole was capable of attracting privilege under s 57(1) did that privilege extend to any proceeding criminal as well as civil, beyond the proceeding the letter concerned?

[6] The fourth question goes to whether any privilege should have been allowed to stand. If the letter as a whole did attract privilege ought that to have been set aside under s 67, if the Mr Clarke’s use of the designation ‘CA’ could have been for a dishonest purpose or to enable the commission of any offence that he knew, or ought reasonably to have known of?

[7] The Institute wishes to pose a fifth and prior question, whether Mr Clarke’s made an offer of settlement at all, qualifying for privilege under s 57(1), or merely asserted his company’s position. Mr Clarke does not accept that this question arises from the Judge’s decision. I agree, especially as that question is unlikely to be able to be answered completely accurately or fairly on the letter alone.

Appeal on question of law

[8] This is an appeal by way of case stated on a question of law only under s 107 of the Summary Proceedings Act 1957, as qualified by s 108, which says this:

No determination shall be appealed against by reason only of the improper admission or rejection of evidence.

[9] Mr Clarke does not rely on s 108 and is right not to do so. That section is these days considered subject to the qualification stated by Fisher J in Davies v Mingins (HC ROT, AP 48/91, 30 October 1991). To the words of the section, he said, should be added ‘unless the admission or rejection was determinative of guilt’. Plainly that qualification applies. The prosecution stood or fell on the admissibility of the letter.

[10] This then is an appeal principally on a question of law in the narrowest sense, whether the Judge founded her decision on a correct understanding of the Evidence Act 2006. With the exception of whether the Judge was right not to disallow any privilege under s 67, there was no discretionary issue. Even at that point the letter was all that there was, as to which I am as well placed on this appeal.

11 December 2006 letter

[11] The letter, on which the Institute sought to rely in prosecuting Mr Clarke, was received by the Disputes Tribunal, Auckland, by facsimile on 11 December 2006 at

10.14 am. It was on the letterhead of CK Accountants Limited, a company which the writer, Mr Clarke, described as his. It was addressed to a named case officer. It evidently concerned a case that day, identified by name and reference number.

[12] The letter was marked ‘without prejudice’ and began in this way:

Set out below is information regarding the above matter and my proposal to settle.

I am unable to attend due to an out of town client who is in Auckland today and requires my full attention on a substantial property development deal.

The information is confidential to you and is supplied for the sole purpose of attempting to resolve the matter as set out above.

There followed a summary of facts, an analysis of the claim, and a proposal that Mr Clarke signed over his own name and the name and address of his company. It was the way in which he designated himself that led to his prosecution, ‘Stuart F Clarke CA’.

[13] That letter was followed by a second facsimile to the case officer that morning, received at 11.35 am, once again identifying the case by name and number, also marked without prejudice, which stated:

Further to our four page fax concerning the abovementioned, and telephone conversations I hereby advise you that the information in that fax which is marked confidential, is for the use of anyone and everyone involved in this case, especially the mediator and Case Officer, for the sole purpose of attempting to resolve the matters set out above.

This time Mr Clarke signed himself ‘Stuart F Clarke, CK Accountants Limited’.

Section 53(4) order

[14] The order that the Judge made ruling out the letter that was fatal to the

Institute’s prosecution was made under s 53(4):

If a communication, information, opinion, or document, in respect of which a person has a privilege conferred by any of sections 54 to 59 and 64, is in the possession of a person other than a person referred to in subsection (3), a Judge may, on the Judge's own initiative or on the application of the person who has the privilege, order that the communication, information, opinion, or document not be disclosed in a proceeding.

[15] Section 53(4) extends the reach of any privilege conferred beyond that able to be claimed and enforced by the privilege holder directly. The holder may refuse to disclose whatever is privileged and deny that ability to any direct or related recipient: s 53(1) – (3). Section 53(4) enables a Court to gather in any unconnected recipient. The Institute was in that last category. It was not privy to the dispute in which the letter was written. The letter came into its hands fortuitously.

[16] Whether the s 53(4) order was open for the purpose for which it was made, whether it was capable of having the effect assumed, is the essential question on this appeal. Section 53 conveyed privilege derivatively. The source of any privilege lay, if at all, in s 57(1). The extent of any privilege lay there also. Section 53(4) enabled an order to be made in respect of any ‘communication, information, opinion or document’. Any s 57(1) privilege lay only in respect of a ‘communication’. Did that embrace the whole letter, or only its strict content?

First issue – did the letter attract privilege?

[17] This case turns then principally on s 57(1) and the first issue is whether Mr Clarke had, even in a formal sense, any claim to privilege under that subsection. Section 57(1) says this:

A person who is a party to, or a mediator in, a dispute of a kind for which relief may be given in a civil proceeding has a privilege in respect of any communication between that person and any other person who is a party to

the dispute if the communication—

(a) was intended to be confidential; and

(b) was made in connection with an attempt to settle or mediate the dispute between the persons.

[18] The Institute contends that s 57 did not assist Mr Clarke. He was not a party to the dispute to which the letter related. His company was. His letter was addressed not to the Referee but to a case officer. Even if it were addressed to the Referee in a real sense, he was not a mediator. His ultimate task was to decide the case.

[19] This submission, I consider, materially overstates what s 57 required. To attract privilege the letter did need to be sent within the context of a dispute, civil in character, that would have engaged naturally enough the parties and any mediator; and that presents no issue. The dispute was civil in character. As disclosed in the letter, it concerned the liability of Mr Clarke’s company under a loan agreement. There did not need also to be, when the letter was written, a civil action in train. All there needed to be was, as there was, ‘a dispute of a kind for which relief may be given in a civil proceeding’.

[20] That apart, when the letter was written, there was a civil action in train and that it was before the Disputes Tribunal did not alter its character. The Disputes Tribunal is a division of the District Court: s 4(3) Disputes Tribunals Act 1988; s 4B of the District Courts Act 1947. The Tribunal possesses under s 10 a wide civil jurisdiction within which this dispute, it seems, incontestably fell.

[21] The letter may have been written to a case officer. That is of no moment. It was intended for the Referee as the second letter that day made clear. That was entirely appropriate. The Referee’s first task was to attempt to settle the case: s 18(1)

– (4). The offer made might have led to settlement. Absent a settlement, of course, the Referee did have to decide the case: s 18(5) – (8). That he or she had received the letter was not disqualifying. The Referee, as s 18 as a whole plainly envisages, would then have set the letter to one side, like any other such offer in the earlier phase.

[22] The Judge was entitled to conclude, I consider, that s 57(1) did afford Mr

Clarke privilege capable of being enforced under s 53(4), subject to two matters; the first of which was whether Mr Clarke was entitled to invoke his company’s privilege. The answer to that has to be qualified. The privilege was his to claim. Section 51(4) deems any reference in Subpart 8 to a privilege holder, as for instance in s 57(1), to include an ‘authorised representative’. Section 66(2)(a) goes further. It confers the privilege on any personal representative directly. It says this:

If a person has a privilege conferred by any of sections 54 to 57 in respect of a communication ... the personal representative of the person ... is entitled to assert the privilege against third parties.

[23] That privilege is less entrenched than that accorded the true privilege holder, whose privilege is only susceptible of being set aside where any claim is tainted by dishonesty or the possibility of an offence. The privilege conferred by s 66(2) is subject to s 66(3) and it says this:

...subsection (2) applies only to the extent that a Judge is satisfied that the personal representative ... has a justifiable interest in maintaining the privilege in respect of the communication ... .

That could prove pertinent to the fourth question on the appeal, though this was not a point taken, whether the Judge should have disallowed any privilege for which Mr Clarke apparently qualified.

[24] The second matter was and remains critical. The Institute contends that any privilege s 57(1) conferred was confined to the strict content of the letter for which privilege was claimed. It did not encompass what was exterior, the date, the signature and the status that Mr Clarke assumed by using the letters ‘CA’. This goes to the scope of the privilege, the second question on appeal. The third question of range is simpler and I will deal with it first.

Third issue – what is the range of s 57(1) privilege?

[25] The Judge held that Mr Clarke was entitled to the s 57(1) privilege even though he was invoking it in a proceeding unrelated to the civil dispute in which he advanced the without prejudice offer attracting privilege, and even though he was

invoking it in a criminal proceeding. That, I consider, was open to her as long as he was entitled to the s 57(1) privilege in the first place.

[26] That the source of the privilege lay in an unrelated dispute civil in character did not matter. As long as the letter attracted s 57(1) privilege the Judge had power under s 57(4) to ‘order that it not be disclosed in a proceeding’; and, as Mr Clarke says, that was any proceeding, criminal as well as civil. A ‘proceeding’ is any

‘proceeding conducted by a court’: s 4.

Second issue - did the letter attract privilege wholly or partly?

[27] The critical question, whether the whole of the letter attracted privilege or only its strict content, the offer made, depends in the first instance on how widely or narrowly the vehicle attracting privilege, the ‘communication’ spoken of in s 57(1), is to be understood.

[28] The 2006 Act does not define ‘communication’. It must be given its ordinary meaning. Potentially that is very wide. The Oxford English Dictionary defines

‘communication’ as ‘the imparting, conveying, or exchange of ideas, knowledge, information, etc. (whether by speech, writing, or signs). And again ‘that which is communicated, or in which facts are communicated; a piece of information; a written paper containing observations.’

[29] To capture all the various ways in which people communicate - by speaking to each other, by making gestures or signs or sending signals, directly or electronically - s 57(1) calls for the widest understanding of ‘communication’. But whatever the means used the purpose must be that for which the privilege is given; and, that apart, the fact that the privilege s 53 confers extends to four categories –

‘information’, ‘opinions’ and ‘documents’ as well as ‘communications’ – may suggest that ‘communication’ is not always to be understood in its widest sense. I begin there.

[30] A comparison of the four categories does not, I have to say, greatly assist. Each captures something discrete attracting privilege. Section 57(1) captures

‘communications’, for instance, and s 57(2) ‘documents’ not communicated. Inevitably these two categories overlap and each will contain ‘information’ mixed with or resulting in ‘opinions’ also attracting privilege. All four are stated widely, and perhaps equally widely.

[31] ‘Information’ is undefined and must be given its usual wide ordinary meaning. ‘Opinion’ is defined but not in a way that assists and is still an opinion in common speech essentially. That too is very wide. ‘Document’ is defined in s 4 to make it as wide in scope as the other three. The primary meaning of ‘document’ is:

Any material, whether or not it is signed or otherwise authenticated, that bears symbols (including words and figures), images, or sounds or from which symbols, images, or sounds can be derived.

This primary meaning includes what might otherwise be thought peripheral and beyond privilege: ‘a label, marking, or other writing which identifies or describes a thing of which it forms part, or to which it is attached’. That might suggest that

‘communication’, which does not have such definite boundaries, is to be understood as widely.

[32] As to that s 53 does not assist. It does not set ‘communication’ against

‘document’. Section 53(1) sets in a sequence ‘communication’, ‘information’ and

‘opinion’, essentially as I have earlier in common speech:

A person who has a privilege conferred by any of sections 54 to 59 in respect of a communication or any information has the right to refuse to disclose in a proceeding—

(a) the communication; and

(b) the information, including any information contained in the communication; and

(c) any opinion formed by a person that is based on the communication or information.

[33] Section 53(1) makes no such helpful reference to ‘document’. Section

53(3)(a) does. It instances actively all four words or categories, but once more does not set ‘document’ against ‘communication’. It confers on the holder of privilege directly the ability to require that any:

communication, information, opinion, or document not be disclosed in a proceeding – by the person to whom the communication is made or the information is given, or by whom the opinion is given or the information or document is prepared or compiled.

[34] Section 51, however, which concerns interpretation and like s 53 extends to all species of privilege and confidentiality in Subpart 8, is more explicit. It says this:

A reference in this subpart to a communication or to any information includes a reference to a communication or to information contained in a document.

This could mean that a ‘communication’ is what is conveyed by the ‘document’, its strict content, to which any formal aspects are peripheral. Or it could mean that the

‘communication’ and the ‘document’ are one and the same thing. It is against that state of equipoise that it seems to me right to look to the common law to the extent that is allowable.

[35] A focus on what is conveyed deserving of privilege, rather than on the vehicle, is as the Institute says consistent with the intent of the common law rule as expressed in McNicholl, Law of Privilege, 435 – 436:

The general rule is that communications between parties which are genuinely aimed at settlement whether oral or in writing, cannot be put in evidence without the consent of both parties in the event of those negotiations for settlement being unsuccessful.

And the intent of the New Zealand Law Commission, certainly, was that s 57 was to do no more than replicate the common law: ‘Evidence Reform of the Law, Report

55, August 1999, volume 1 C247 – 248.

[36] At common law, the Institute accepts, the privilege could bind third parties placed as it is, as the s 2006 Act still does. Any boundaries limiting the privilege at common law, the Institute contends, however then rationalised, ought also to apply. As against that, Mr Clarke says, s 57 is exhaustive and subs (3) allows the only exceptions that have been preserved. Subsection (3) says this:

This section does not apply to—

(a) the terms of an agreement settling the dispute; or

(b) evidence necessary to prove the existence of such an agreement in a proceeding in which the conclusion of such an agreement is in issue; or

(c) the use in a proceeding, solely for the purposes of an award of costs, of a written offer that—

(i) is expressly stated to be without prejudice except as to costs; and

(ii) relates to an issue in the proceeding.

[37] Mr Clarke might equally say that if the common law were to have a place s 57 would surely have said so, as s 53(5) does as to one field of legal professional privilege. As against that, of course, the Act itself says that it is not a code and ss 10 and 11 allow the common law a definite place.

Resort to common law

[38] Section 10(1), which governs interpretation, sets the balance. The Act is the starting point and may well be the end point. It speaks for itself and is not to read subject to the common law. If it speaks explicitly and completely there can be no resort to the common law. If it speaks less than definitively and completely there can and may need to be, but only insofar as the common law marches with the purposes, principles and letter of the Act.

[39] Section 10(1) says that the Act:

(a) must be interpreted in a way that promotes its purpose and principles; and

(b) is not subject to any rule that statutes in derogation of the common law should be strictly construed; but

(c) may be interpreted having regard to the common law, but only to the extent that the common law is consistent with—

(i) its provisions; and

(ii) the promotion of its purpose and its principles; and

(iii) the application of the rule in section 12.

[40] Where an issue of admissibility cannot be resolved under the Act, or resolved completely, s 12 makes the common law a mandatory consideration, but in much the

same way as s 10(1). It says this:

If there is no provision in this Act or any other enactment regulating the admission of any particular evidence or the relevant provisions deal with that question only in part, decisions about the admission of that evidence—

(a) must be made having regard to the purpose and the principles set out in sections 6, 7 and 8; and

(b) to the extent that the common law is consistent with the promotion of that purpose and those principles and is relevant to the decisions to be taken, must be made having regard to the common law.

[41] The purpose of the Act, s 6 states, is ‘to help secure the just determination of proceedings’ and that is to be achieved by means of six purposes, one of which is particularly important, that in subpara (d): ‘protecting rights of confidentiality and other important public interests’. The two cardinal principles on which the Act rests are consistent. Relevant evidence is admissible, s 7. But evidence is inadmissible if its probative value is outweighed by the risk of unfair prejudice or needless delay, or compromises the right to advance an effective defence, s 8.

[42] The common law has then potentially a place, but in the view of one commentator, a view Mr Clarke shares, ss 57 and s 67 state the law exhaustively and indeed narrow the common law. On another view, that espoused by the Institute, they replicate and are to be interpreted consistently with the common law.

Scope of common law privilege

[43] Section 57, according to The Evidence Act 2006: Act and Analysis, 233, EV

57.09, is definitive: ‘Section 57(3) sets out the only exceptions to the privilege for settlement negotiations or mediation which are recognised by the Act.’ And as to the common law exceptions: ‘The common law recognised other exceptions to the privilege. However, the effect of codification is that there is little room to argue for the continued existence of these earlier exceptions.’ Section 67 confers the only independent ability to disallow privilege.

[44] I prefer, myself, the opinion expressed in Cross on Evidence, 3614, EVA

57.9, which allows the common law a continuing place in setting boundaries to the privilege conferred:

There are a variety of common law exceptions to the without prejudice rule, including ‘unambiguous impropriety’, misleading the Court, threats, or acts of bankruptcy. None of these exceptions are provided for in the Act, but all, it is submitted, can readily be subsumed into a proper approach to ... interpreting the statutory privilege ...

[45] The common law distinguished what was privileged from what was not, not formally, but in substance. It admitted without prejudice communications, or aspects of them, where that did not offend the purpose of the privilege. It withheld privilege from anything tainted. The words ‘without prejudice’ have never been conclusive: South Shropshire District Council v Amos [1986] 1 WLR 1271; Buckinghamshire County Council v Moran [1989] 2 WLR 152; Telecom New Zealand Ltd v Sintel- Com Ltd [2007] NZCA 499; [2008] 1 NZLR 780, CA, at 784; Telecom New Zealand Ltd v Sintel-Com Ltd [2007] NZCA 499; [2008] 1 NZLR 780, CA, at 784.

[46] Thus in the 18^th century a privileged document was allowed in to identify handwriting: Waldridge v Kennison (1794) 1 ESP 143; 170 ER 306; in the 19^th century to establish the fact of a communication and its date, to prove delay: Walker v Wilsher (1889) 23 QBD 335, 337; and to prove an act of bankruptcy: Re Daintrey:

ex parte Holt (1893) 2 QB 116. In Field v Commissioner of Railways (NSW) (1955)

[1957] HCA 92; 99 CLR 285, 291 – 293, an admission was held not privileged, because not reasonably incidental to the negotiation or settlement. Unqualified admissions in civil negotiations have been admitted in criminal proceedings: Davies & Davies v Nyland & O’Neill (1974) 10 S.A.S.R. 76, 90 – 91,Wells J.

[47] The purpose of the rule, Robert Walker LJ said in Unilever Plc v Procter & Gamble Co [2001] 1 All ER 783, 792, which is based partly on public policy and partly on express or implied agreement, is to protect admissions against interest in settlement negotiations should the matter go to trial. In the eight categories of exception to the rule that he identified none, he said at 793, involved ‘the disclosure of admissions bearing on the subject matter in dispute’. In that sense the exceptions he identified could be thought of, not just as exceptions, but as instances beyond the true scope of the privilege.

[48] That perspective, it seems to me, is entirely consistent with the purpose of s

57, as expressed in its title ‘privilege for settlement negotiations or mediation’: s 5(1)

Interpretation Act 1999. It is not precluded by s 57(1), (2), each of which is very generally expressed. Nor is it precluded by s 57(3), which identifies the obvious formal boundaries of the privilege. Privilege does not arise where it is not claimed, as in an offer made without prejudice except as to costs. Nor can it apply when its purpose is spent and the fact or terms of settlement are in issue.

[49] The wider common law, by contrast, it seems to me, even when it speaks in terms of exceptions, assists to define what s 57(1), (2), do not define, the general scope of the privilege. If it were otherwise, if s 57 were intended to redefine the privilege at common law, to convey privilege where it had never before been accorded before, to erect a more formal and nearly absolute privilege, one would have expected it to say so very plainly.

[50] The Unilever case does affirm that the common law protects all aspects of a communication absolutely. Statements in negotiation, Robert Walker LJ said, are not to be dissected to protect only admissions against interest. That, he said, would create ‘huge practical difficulties’ and would, subject always to any question of dishonesty, offend the underlying objective of the rule. That is true also in New Zealand, and under s 57: Cooper v Van Heeren [2007] NZHC 48; [2007] 2 NZLR 783.

[51] That is not the issue here. The Institute has no wish to rely on the strict content of the 11 December 2006 letter. That is to remain sacrosanct. It wishes only to rely on the date of the communication, the fact of Mr Clarke’s signature, the way in which he designated himself, all aspects of the letter peripheral to the strict content for which privilege is to be preserved. These peripheral features, I consider, in contrast to the Judge under appeal, lie beyond the privilege that s 57(1) confers.

Fourth issue – should any privilege have been disallowed?

[52] If I am wrong in that interpretation of s 57(1), and the letter as a whole is capable of attracting privilege as the Judge held, there is the distinct question whether the Judge should have set any privilege aside under s 67(1), which can oblige a Judge to disallow any privilege otherwise conferred:

if satisfied there is a prima facie case that the communication was made or received, or the information was compiled or prepared, for a dishonest purpose or to enable or aid anyone to commit or plan to commit what the person claiming the privilege knew, or reasonably should have known, to be an offence.

[53] I do not consider that the Judge was wrong to withhold exercising this power. The letter itself, as she held, seems to have been legitimate enough. It was an offer to settle the loan claim at a higher figure than was claimed, but offset by a cross-claim twice as large. What taints the letter potentially is the single feature on which the Institute wishes to rely, that Mr Clarke in designating himself ‘CA’ assumed the status of a chartered accountant.

[54] The Judge was right, I consider, not to disallow privilege under s 67(1) on the basis that, in assuming that status, Mr Clarke’s purpose was to ‘enable’ the commission of an offence, of which he was or ought reasonably to have been aware, or to aid his company to do so. Illegitimate use of the designation ‘CA’ might itself constitute an offence. But s 67(1) appears to envisage an offence beyond and promoted by the ‘communication’. At most, Mr Clarke’s use of the designation could only have brought to the letter a dishonest purpose.

[55] When he wrote the letter Mr Clarke had not been a chartered accountant for some years. He wrote, moreover, as an officer of what may have seemed an accountancy practice, CK Accountants Limited, when his actual company, I gather, was CK Management Consultants Limited. He claimed to be an ‘honest professional who knows how to work out table loan calculations.’ Arguably his claim of status brought this element of dishonesty to the letter, that he sought to invest his company’s offer with a weight beyond any that it had inherently.

[56] That does not seem to me to be enough to warrant the privilege being disallowed under s 67(1). It appears to require a dishonest purpose that more completely infuses or animates the ‘communication’. The letter as a whole, as I have said, seems legitimate enough. This detail, however dishonest, remains relatively peripheral. For the power to be exercised a high threshold applies: Cross on Evidence 3809, EVA 67.3. The Institute would have been on stronger ground had it

contended under s 66(3) that Mr Clarke has no justifiable interest in maintaining any privilege that s 57(1) confers.

Conclusion

[57] The date of the letter, 11 December 2006, the letterhead CK Accountants Limited, the case officer at the Disputes Tribunal addressed, that Mr Clarke signed the letter and the way in which he did so, ‘Stuart F Clarke CA’, and the details beneath his signature, did not, I conclude, and do not enjoy s 57(1) privilege. Contrary to the Judge’s conclusion they lie beyond the strict content of the letter to which the claim of privilege truly related.

[58] If those peripheral aspects of the letter did and do attract s 57(1) privilege, however, the Judge was right not to disallow that privilege under s 67(1). Had she been invited to she might well have considered under s 66(3) whether Mr Clarke had any justifiable interest in maintaining his apparent privilege, or any sensible basis for claiming that his defence would be compromised. She was not invited to do that. It is as a result of my primary conclusion that the appeal will be allowed.

[59] The decision, dated 10 March 2008, dismissing the charge against Mr Clarke, will be set aside and the case is remitted to the District Court for rehearing.

P.J. Keane J