As lawyers know, between the lengthy process and the various complexities that are inevitable within the traditional legal system, many people become discouraged with their attempts to obtain justice. As others have suggested, alternative dispute resolution mechanisms, specifically mediation, may offer the needed solution to for this lack of efficient access to justice. Rather than aiming to replace the established system, however, these mechanisms work in parallel with it.

Many non-governmental organisations here and abroad have realized the overwhelming inefficiency of the existing traditional legal system in the countries in which they are based. This is the reason many projects aiming to facilitate access to justice were created in developing countries such as Haiti, Jamaica and Congo Kinshasa.

In Jamaica, the Dispute Resolution Foundation (DRF) is an initiative undertaken by lawyers and judges who aim to offer an alternative method to access justice. It was inspired by mediation in Canada, the United Kingdom and the United States. The system of mediation and conciliation of Jamaica is involved in all areas of law (family law, criminal law, business law, etc.) and is essentially based on three pillars: justice, peace and development. As might be expected, the mediator tries to help the parties find common ground and reach a mutually agreeable solution, unlike the court system, where one party wins and one inevitably loses. Only if this procedure fails will the courts intervene in the process. If successful, the agreement between the parties shall be approved by the courts and will have the same merit and authority as a trial verdict.

Currently, the DRF provides ADR training to roughly 12 law school graduates, taking as step to ensure that some future lawyers, at least, will be trained and well prepared to advise their clients respecting mediation. 

Following the 01/12/2010 earthquake in Haiti, many residents lost their homes and now live in tented community camps. The proximity of the living quarters has unfortunately led to several robberies, sexual abuses, rapes, etc. Several NGOs arriving in Haiti realized that the victims of these crimes did not have access to any form of justice and have since tried to build a system of mediation within the camps. 

United States Agency for International Development (USAID), the US government agency providing economic and humanitarian assistance worldwide, has created the ProJustice program in Haiti and is implementing mediation in many communities in the center and in other strategic cities of the country. One of the main goals of this project is to strengthen services for non-criminal justice offered by the local Judges and to improve the capacity of legal professionals (lawyers, notaries, surveyors, clerks, bailiffs) to fulfill their mission and promote alternative means of conflict resolution, such as mediation and conciliation in Haiti (as is being done in Congo Kinshasa). 

In addition, Lawyers Without Borders (Canada) for their part recently opened their first Center of Proximity Justice and are implementing mediation in refugee camps. These centres are very important to those who need help. Their work is very similar to that of the DRF in Jamaica. 

Concern Worldwide is an international NGO, also active in Haiti and is implementing the system of restorative justice (borrowed from criminal justice). The aim of restorative justice (RJ) is to reach a peaceful solution by promoting reconciliation throughout a nation by dealing with emotions (essentially, anger, fear and pain). In order for restorative justice to be successful, both parties must agree to restore a relationship, typically meaning that the wrongdoer must apologize to the victim, which hopefully will allow the victim to start a new life and will reintegrate an offender in society.

RJ takes many varied forms. These include informal facilitation, victim-offender restorative meetings, victim-offender conferencing, family group conferencing, restorative conferencing, restorative cautions, community conferencing, sentencing circles, community panels or courts, healing circles and other community-based initiatives. The process is undertaken with a mediator or facilitator who organizes meetings with the parties to help them restore their relationship. 

I recently had the opportunity recently to meet with the representatives of all the above mentioned Caribbean institutions and realised, sadly, that these NGOs do not collaborate with one another within Haiti. Each organisation works on a standalone basis with no coordination from an overarching institution; they do not participate in any open communication with other NGOs, leading to lost lessons and, in some cases, wasteful overlaps in services.

With the globalization of world markets, competition is consequently rampant. The emergence of the new global village means that nations around the world are looking for ways to be more competitive and more open to foreign investments. It creates a denationalisation of economic conflicts. Alternative dispute resolution and supranational organizations became the two legal solutions to the new economic needs. Nations began coupling the two and many trade treaties have been signed. The most well-known system is the European Union, which promotes a unified continent. As in Europa, several African countries, most of them being former French colonies, joined forces to harmonize and unify their business laws by creating the Organization for the Harmonization of Business Law in Africa (OHADA). 

The OHADA was signed on September 17^th, 1993. Its purpose is to promote regional integration and economic growth and to ensure a secure legal environment through the harmonization of business law. The organization’s Council of Ministers has already adopted unified laws for the following: General Commercial Laws, Corporate Laws and Rules concerning different types of joint ventures, Laws concerning secured transactions (guarantees and collaterals), Debt Recovery and Enforcement Law, Bankruptcy Law, Arbitration Law, Accounting Law, Law Regulating Contracts for the Carriage of Goods by Road. The Uniform Act on Cooperative companies was adopted on December 15^th, 2010 and will be enforced on May 15^th, 2011 according to Section 9 of the OHADA treaty. Labour Law, contract law and consumer sale law are the next areas to be harmonized. They also have plans to harmonize many other aspects of law that have an impact on Business. The main purpose of the system is to secure all of the aspects of the business, legal and judicial systems, which explains why the state parties accepted to relinquish a part of their sovereignty to OHADA. The Unified laws are automatically part of the domestic laws of the states and the decisions of the Common Court of Justice and Arbitration are automatically enforceable in any of the states of the Union.

Contrary to the European Union, OHADA integrated the legal system by harmonizing the business laws of the state parties that will be followed by an economic integration. It is a more appropriate process for the African continent, as the countries are generally developing nations; they have to seduce investors from other countries by showing them that they have a reliable judicial system that is applying the law that is enforced. To ensure the quality of the formation of the judges, there is a Regional training School of the Judiciary in Porto-Novo (Benin). The Common Court of Justice and Arbitration, based in Yaoundé (Cameroon) has already ruled on over 3000 cases. 

The state parties soon understood that they required a simple and unique system tailored for them because of the multiplicity and complexity of their laws that are obsolete and were never really appropriate to their needs as they were imposed by colonizers. This legal harmonization will stabilize relations between nations and facilitate trade between them and with other states outside of the OHADA Union. 

The following 16 countries are presently part of the treaty: Benin, Bissau Guinea, Burkina Faso, Cameroon, Central Africa, Chad, Comoros, Congo, Equatorial Guinea, Gabon, Guinea, Ivory Coast, Mali, Niger, Senegal and Togo. The membership of the Democratic Republic of Congo is under way. According to Section 54 of the Act, the treaty is open to other states, including non-African countries. Therefore, countries that may see an interest in being part of the treaty can indeed ask to be part of it. It could be a great way for developing countries, regardless of their position on the map, to open their borders to international business. 

There are OHADA Clubs in many countries around the World. The Canadian OHADA Club is located in 110 rue De La Barre, suite 1820, Longueil, Quebec and was first affiliated with the Faculty of Law of the University of Ottawa. Its actual president is Karel Dogué. Canada's OHADA Club's mission is to contribute to the popularization and better understanding of OHADA law throughout the Canadian legal community through conferences, roundtables and other similar activities. For those doing business in one of the African state parties, an efficient way to proceed would be to consult the treaty and its uniform acts and then contact the regional OHADA club. 

The stress of passing the Bar is present in every student’s mind from the very beginning of their legal studies. In Quebec, the ideal time to apply and find an internship in one of the top prominent law firms is during the second or third year of law school, during what is referred to as the ‘’course aux stages’’ (i.e. the race to find an internship). Not every student participates in the event and only a select few who take part have the privilege of landing an internship. Some students with connections find a spot in midsize firms, and those with more important connections can find an internship in the ‘’big’’ firms even after the Course is over. A vast majority of students, however, hold off their search during their bachelor’s degree and only begin to apply during Bar School.

There are some offers listed on L’Ecole Du Barreau du Quebec’s website, as well as some offers on the various university law faculty websites. However, with six law schools preparing students to be called to the Bar, the competition is very tough and the number of internships available compared to the number of applicants is extremely low. Many times, applicants quickly learn that some lawyers don’t even have the means to offer an internship (not enough work to occupy the intern, the lawyer isn’t always available to supervise the intern’s work, or they don’t have the budget, etc). For this reason, creativity plays an important role in this economy and the system should be more open to facilitate the access to the profession. 

Similar to the co-op programs (small practitioners splitting articling students) which Omar Ha Red-Eye spoke of in a previous post, a lawyer in Montreal developed a new system that could help stimulate the internship process. With the help of technology (collaborative platforms, electronic documents and signatures, instant messaging, cell phones, etc.), Dominic Jaar has re-imagined the traditional law internship, which I’ll refer to as the 2.0 Internship, and Francois Senecal has in fact completed a non-conventional internship with Dominic at Ledjit Consulting (which was recently acquired by KPMG) in Montreal. This was of course done with the permission of the “Comité de Formation Permanente”. Permission had to be granted by the Quebec Bar due to the fact that the intern’s work would not continuously be supervised (which in principle is indeed a requirement of the regulatory Committee) – at least in the traditional understanding of “supervision”.

Once permission was granted, Francois had landed a stage and Dominic had landed an intern whose work he could supervise even while being on business trips. The main condition of their contract was that Francois had to be available online, on Skype, during work hours. Furthermore, as in an office setting, Dominic had to be able to easily reach Francois at any moment. Francois benefited from being able to contact any of the firm’s employees, who were always reachable online or by phone. Ledjit generally followed an “open door” policy, and lawyers had to be easily reachable and ready to help. 

Francois did however still meet Dominic in person at least once a week. They would debrief each other and prepare an evaluation of the week. They always kept in mind that the traditional internship process of being in-person contact was also very important and promoted further communication. Francois successfully completed his internship and was hired to work for Ledjit Consulting (and now is an adviser at KPMG).

I believe that Francois and Dominic’s successful internship experience should receive much more promotion and advertisement by the Quebec Bar (as well as other Bars for that matter). It could definitely open doors for students who are having a hard time finding a traditional internship. It could be as equally beneficial to lawyers who can’t commit to hiring an intern while meeting the usual and traditional requirements of supervision. 

It is widely recognized by educational institutions that associations provide a very positive influence in the lives of students. Other than making students feel as though they are not alone in what can be a stressful environment, being a member of an association has many advantages, such as making valuable contacts and meeting other people who obviously share the same interests.

The Black Law Student Association of Canada (BLSAC) is an association that is committed to supporting and enhancing the academic, professional and networking opportunities for Black law students. As Omar Ha-Redeye, a fellow Slaw member, once said in a previous article "Completing the Circle of Blood for Future [Minority] Law Students” the BLSAC is here to help the student in need to “fit” in a legal profession where diversity is lacking.

The BLSAC is present in every Canadian province, though more common and more active in anglophone law schools. During the winter of 2010, the Faculty of Law of The University of Québec in Montreal (UQAM) became the first francophone chapter in BLSAC, long after McGill University’s faculty of law joined the ranks of the association. Opportunely for the 20^th anniversary of the association, University of Montreal’s faculty of law will be the second francophone university to participate in the National Conference of the BLSAC, taking place in Toronto from March 24-27, 2011, This involvement of francophone universities is essential to bring into the BLSAC network students and young professionals of Quebec, especially given the disparities between Quebec and the other provinces and given the language history within Canada.

The question remains, why did it take so long for Francophone universities to be part of the BLSAC? The answer is simple; after having studied in three of Quebec’s four francophone law schools, I’ve realized and am led to believe that unfortunately minority students do not share the same spirit of association found in anglophone schools. It’s very rare to find a regular student who is an active member of an association. Additionally, the issue of being different, or more belonging to another ethnic group, is still a taboo subject. A perfect example would be the University of Montreal’s Jewish Law Student association which initially faced many difficulties in being recognized as an independent entity. Even today, it remains under the wing of the university’s principal law student association (AED – Association des étudiants en droit). Also, the fact that the University of Montreal previously had a BLSAC chapter that was not sustained points up the difficulties faced in Francophone universities.

BLSAC obviously means a great deal to us Black francophone law students. For so long, we haven’t had the opportunity to really see or understand what goes on in other Law Schools. However, we are now able to interact and grow together throughout Canada. As students at one of the greatest law faculties in the country, we intend to make our association’s mission and membership attractive to any and all law students who feel inclined to join us, even setting an example that will be followed by our francophone colleagues across the ocean. 

Initiated by Ms. Ida Ngueng Feze in the summer of 2010, the creation of our chapter brought together a group of students who were willing and eager to embark on a journey that would make history and confirm that minorities in francophone law schools can be every bit as involved as their anglophones counterparts. Elected for 2010-2012, our board members are all members of various organizations and entities on campus and in the legal community, and play an important role in demonstrating the participation of minorities in the law faculty generally:

• Jean-Jacques Bertrand ATOKE (Vice-President)
• Sira COULIBALY (Academic Affairs)
• Karel DOGUÉ (Public Relations)
• Armelle FOTSO (Professional Development)
• Ida NGUENG FEZE (President)
• Christelle VAVAL (Treasurer)
• Frédérique YOUMBI FASSEU (General Secretary)

We are planning a Cocktail party on January 20^th which will serve to introduce our chapter to the university community. Local lawyers and fellow chapters among others have been invited to come meet us in this convivial setting.

On March 10^th, we will hold our first official event, a conference on the Different Faces of Arbitration (“Les différentes facettes de l’arbitrage: perspectives canadienne et internationalle”), which will take place at our Faculty of Law. The event is organized with the support of the Center for Research in Business Law and International Commerce (Centre de Droit des Affaires et Commerce International – CDACI) of the University of Montreal. Many great speakers have been lined up and several participants will be arriving from abroad and will help make for an enriching and fulfilling event. While Pr. Nabil Antaki will moderate the event, Harvard graduate Professor Benjamin Davis who has written extensively on the issues of race and international arbitration will be amongst us. Subjects presented include arbitration in Quebec (Marie-Claude Rigaud), online arbitration in Canada (Nicolas Vermeys), and arbitration in Africa within the Organization for the Harmonization of Business law in Africa (l’Organization pour l’Harmonisation en Afrique du Droit des Affaires –OHADA). For more information on the event, please do not hesitate to contact me at cvaval@hotmail.com. We will be happy to have you with us for both events and all those to come. 

Although two of my columns have already been posted on this blog, I never really officially introduced myself to the readers. As the youngest columnist in the Slaw family, I’d very much like to share my background and the road I travelled to date on my professional journey! 

The Early Years 

My story begins in the summer of 2002 when I left my family and moved to Montreal from Haiti to begin my postsecondary studies. I immediately enrolled to College Jean-de-Brébeuf and quickly developed a particular affinity for science and the law. This affinity for both those fields would stay with me throughout all my legal studies, as I always tried my best to unite them. 

Following my college degree, I decided to pursue an LL.B. in law at the University of Québec in Montreal (UQAM). There is a very socialist mentality shared by a majority of students at UQAM; people are used to fighting for their rights. The latter fact may contribute to the “bad” reputation the school seems to unfortunately have within the legal community. The multiple strikes that have been started by UQAM students probably don’t help with their standing either! I was personally affected by one such strike during my freshman year at UQAM that lasted a good month. I’ll admit that I don’t remember much of anything from the classes I took during that semester, but besides that unfortunate event, I don’t understand why its law program isn’t as revered as other Canadian universities’. In fact, most of UQAM’s professors also teach at the University of Montreal and the Quebec Bar and are thus very well known in the legal community.

I had the opportunity to be taught by Me. Paul Martel, one of the most important figures in business law in both Canada and the US. Many other professors are also very experienced and even write for the Quebec Bar’s book collection (for example, Me Jean-Pierre Villaggi). I therefore have trouble understanding why UQAM law students are still considered to be less qualified than graduates from other universities.

To the best of my knowledge, UQAM graduate have a hard time snagging internships in Montreal’s top law firms. I find that reality very regrettable and I truly believe that the legal community should give UQAM students the opportunity to prove themselves; we have the same training as everyone else and statistics show that we sometimes even receive higher scores than other universities at the Bar!

The Quebec Bar Experience

In 2005, the Quebec Bar renovated their entire program (for the worse), changing the evaluation process from six open book exams to two closed book exams (at the end of a four month intensive program). There are now also three quizzes, worth 30 points, given throughout the four month period. I believe that several aspects of the program can and should be corrected. This opinion is shared by many, and is slowly being publicised; a recent article in the “24 heures” newspaper sheds some light on the dissatisfaction many students witness. 

Nonetheless, my personal experience at the Quebec Bar was quite interesting as it was very stressful to have to adapt to a new way of learning in a very short period of time. For over than ten years, I had gotten use to a certain way of learning and filtering information in school. However, in less than a year (eight months for some (who chose to participate in the voluntary preparatory classes) and four months for others (which was my case)), I had to adapt to searching for information on a case by case basis, in order to complete exercises on topics that were sometimes new to me, which made it extremely difficult and confusing. I therefore certainly believe that Quebec Law schools should instate mandatory transitional classes, which will ease the process once at Bar, or perhaps the Bar should consider reviewing the certification system to better accommodate the student. The Bar shouldn’t fail or simply reject students so easily, but rather find a way to polish its training program and ensure that our knowledge doesn’t go to waste. I sincerely believe that the fact of having an LLB Diploma equates to being able and having the right to become a lawyer. 

The Neverending Search for an Internship

The search for an internship has to be one of the longest roads I’ve taken in my life; it took what felt like forever to find one! 

After having successfully completed the Quebec Bar in May 2008, I optimistically began my search for an internship. Many people suggested I accept any offer that came along seeing how the main goal was to be done with it and finally be a lawyer. However, it was far more important for me to find an articling position that met my standards and involved the fields of law I am interested in. After all, an internship should do just that, i.e. help you learn and prepare you for the field in which you want to specialize.

As time passed and I couldn’t find the right internship, I managed to complete both a masters in Common Law and Transnational Law at the University of Sherbrooke, as well as a DESS in Business Law at the University of Montreal. Not for nothing, I wanted those degrees under my belt because I think in this globalized world, and more specifically in Canada where there are two legal systems, a business law lawyer must be open minded and able to offer the best complete information to his/her clients.

After two years of searching, and after completing two degrees, I finally found an articling position at the Ministère du Revenu du Quebec in June 2010. I’m working in the department of interpretation of Quebec’s tax law, where I have the opportunity to use all my knowledge. When I started, I was able to ask that I work on assignments and files in intellectual property, which is an area of law in which I’d like to specialize. I finally have the opportunity to work in something I love and enjoy. Someone once told me that good things come to those who wait; when you are sure of what you want to do with your life, taking whatever comes first should never be the option!

Despite the advent of Smartphones (Blackberry, iPhone, etc.) and the many ways they facilitate our lives (i.e. we can now start a car, open a bank account, receive and send e-mails, read the news, etc.), the legal profession still seems to be behind on technology. Although the technology is clearly available, we unfortunately fail to take advantage of its full potential. We have all the tools and gadgets necessary to practice the law from our own homes, without ever even having to physically meet a client or go to court. In fact, the virtual world is less costly, greener, faster and more effective.

There are currently no boundaries for business transactions; everyone is doing business everywhere. Gone are the days where we had to physically travel to China in order to do business. With that in mind, Ebay and other online auction sites have successfully implanted virtual dispute resolution. In cases of dispute arising from a failed transaction that took place in one of these virtual markets, parties don’t have to meet to be able to resolve their dispute. With SquareTrade, a third party dispute resolution provider for eBay, parties can file a case, negotiate and even receive the assistance of a mediator if necessary. The system is fast and effective for simple actions; small cases involving small amounts of money. The outcome of such cases is usually the return of the good with refund or in some cases the buyer can keep the good for free. Unfortunately, the fact remains that mediation cannot establish legal principle. Litigation is sometimes unavoidable. There will continue to be grey area and parties will continue to fight for the same things. In trickier and more complex cases, where the parties want to resolve a legal issue, a Court is the only entity that has the power to do so. Regardless, as mentioned above, we have all the technology necessary to move towards a complete reform of the judicial system: 

• - eFiling Notice: this is an electronic filing method that allows lawyers to file documents electronically with a court or tribunal via a secure Internet-based system. It includes the transmission, service and storage of information in electronic form whether the information is sent and received in a way in which it can automatically populate the court’s data base or whether information is manually entered into the court’s data base.

  This electronic legal service has been utilized by the Federal Court since 2008. All proceedings before the Federal Court can be filed electronically with such legal service providers as LexisNexis and NetLegal. It eliminates having to pay fees for every transactional filing, and even having to rush to the Court Registry office before it closes. It can also reduce a law firm’s various administration fees; less paperwork means less ink to buy.

  E-filing a document increases our control over it by allowing us access to the document as soon as it is delivered, as well as allowing us to decide who will have access to it, etc. Such a system, that is regrettably equally unknown and barely used, is the Telephonic Courtroom, offered by the Quebec Bar. With the latter initiative, lawyers can even avoid having to go to Court to postpone their cases to a later date. Telephonic Courtroom is unfortunately so underutilized that the Bar is considering abolishing it. If that was to happen, it would be a big step backwards for the advancement of technology in the profession. 

• Cloud Computing Storage: cloud storage is an important tool that stocks information. According to the National Institute of Standards and Testing, a branch of the US Department of Commerce, 
  

  Cloud computing is a model for enabling convenient, on-demand network access to a shared pool of configurable computing resources (e.g., networks, servers, storage, applications, and services) that can be rapidly provisioned and released with minimal management effort or service provider interaction.

  A third party would stock all the documents, proceedings, affidavits, etc with no risk of affecting the confidentiality and privacy of the information that will be transferred to their hard drives. Microsoft offers such a service with Windows Azure, as does Adobe with LiveCycle. It is important to note however that these clouds are hosted in the USA, where the Patriot Act and privacy regulations fail to meet Canadian standards. 

• Video conferencing: This is how the pleading and all the meetings between lawyers and judges take place. There are already different services available that fulfil business’s video conferencing needs. Adobe offers a service called Adobe Connect Now (can accept up to three participants). The Adobe Connect Pro supports up to up to 80,000, persistent content, meeting recordings, and multiple deployment options. Microsoft offers a very similar service called Microsoft live meeting (a maximum of 5 participants can use a webcam and there can be up to 1250 viewers).

  The fact that there can still be viewers, regardless that such programs are web based, is appealing because it follows the principle that court audiences have to be public and that restricted access is the exception. It’s also quite obvious that watching the case itself would be “easier” than the traditional method of having to physically show up! 

The Centre de Recherche en Droit Public at the faculty of law of the Université de Montréal has a Cyberjustice Laboratory project. The purpose of this laboratory is to research and develop infrastructure for creating a virtual courtroom and a transportable courtroom that will be used to test software modules for facilitating online dispute resolution, virtualizing court files, managing court dockets in a more effective manner, and helping judges write decisions. This is an innovative system that could integrate all the technology available in the market into a unique friendly and easy to use software for all practitioners. 

Training could be given to law students in universities, similar to the workshops they receive for legal database research (LexisNexis, WestLaw, etc.). For practitioners, seeing how there is a mandatory continuing education for lawyers in Quebec, during the first year of the program every lawyer would have the duty to attend a training session similar to those for students. 

As announced recently on Slaw, an upcoming event, taking place in Ottawa on September 22^nd and 23^rd, will outline the ever-growing emergence of technology in the legal field. The inaugural Forum on Court Technology presented by the Canadian Center for Court Technology will be a great opportunity to learn about the use of technology in courts today and to discover trends for the future.

Law is a vocation where every word counts; each word has a meaning. However, in almost all correspondence with lawyers, the words “without prejudice” or “confidential and legally privileged” are present. With the ever-growing use of email, it has become standard to include a confidentiality notice at the end of your message, just below the signature. Do we really know the meaning of the words we use though?

“Without prejudice” has been used by British courts for over 100 years. According to an article by Ronald D. Manes, Solicitor/Client Privilege, it originates from the solicitor-and-client privilege which was “established by the end of the sixteenth century and was the first category of confidential communications to be afforded a 'privilege'”. Generally, courts have considered solicitor-and-client, husband and wife, priest and penitent and doctor and patient communications as privileged ones. The solicitor-and-client privilege is based upon the notion of confidence and honour that permits a legal adviser to communicate quite freely without the inhibiting influence that would exist if what was said between him and his client could be used as evidence or used unfairly against them before a court.

The “Without prejudice” expression does not fall under the solicitor-and-client privilege. The solicitor-and-client privilege only protects communications between a client and his lawyer. Rightly used, according to Manes, it means that the enclosed communication cannot be used as evidence before the court. This privilege encourages parties to make concessions by communicating freely and without prejudice concerning the possible compromising of their claims and settlement thereof. When added in a letter, it means that in the event of failed negotiations between the parties, nothing in the document could be taken as an admission.

Additionally, the presence of those terms on the top of a letter does not automatically categorize the communication as a privileged one. In Abrams v. Grant [1978] O.J. No. 2283, Steel J. confirmed that courts will go beyond the writing to find the real intention of the party in the communication. 

[...] the mere words “without prejudice attached to a letter do not make a document privileged and therefore protected from discovery or being admitted as evidence at trial. It is the intention of the writer and the content of the letter that govern whether or not the document is privileged.

According to Steel J., the intention is the key. If the correspondence is to make overtures for compromise or settlement, the document will be protected by the privilege. However, according to Gemma Lampert, senior associate in the dispute resolution team at UK law firm Dundas & Wilson, “the without prejudice rule is not absolute and even communications made in an attempt to settle a dispute may be admissible if the case requires it”.

The use of this expression in a communication between a client and his solicitor is unnecessary, of course, because this type of correspondence is protected by the solicitor-and-client privilege.

The “Confidential and legally privileged” notice is also widely used in correspondence. When used at the end of an email, this notice serves more as an intimidation tool, rather than a legal one. Most of the time, the recipient is not someone to whom a privileged communication protection could be expected. In D. v. National Society for prevention of Cruelty of Children [1978] AC 171, four fundamental conditions were recognized for a confidential communication to be privileged. 

1. the communications must originate in a confidence that they will not be disclosed;
2. this element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties;
3. the relation must be one that the opinion of the community ought to be sedulously fostered;
4. the injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of the litigation.

A simple “confidentiality notice” will more than suffice, because the objective is to avoid the divulgation of the information that is contained within the email. The confidentiality notice will even cover the privileged communication because all privileged communications are confidential but not all confidential communications are privileged. This is where we usually err! 

Remember, everything should be used moderately. It is more valuable to use the right words at the right moment than unnecessarily intimidating words.