Gavin Murphy

What makes law

the Ghanaian and comparative context is that of prosecutions for the contempt of ‘scandalising the court’. The author approves of the exercise by the Supreme Court of its contempt powers during a period of tension generated by the hearing of a presidential election petition. As the author notes, the determination of the balance between freedom of expression and protection of national security and the due administration of justice may evolve over time. In more tranquil times, judges may take a more relaxed view of scurrilous abuse. In his final chapter, the author offers some concluding reflections. He advocates a purposive interpretative approach to the law which stresses the discovery and assessment of law’s impact on society. Law can then serve the interests of society and become an instrument for social action. Perhaps the author’s most interesting concluding observation relates to the need for an apex court to sustain its leadership role in purposive judicial adjudication by maintaining among its membership a healthy climate of intellectual discourse and tolerance of dissent. The author, who was himself often a dissenting voice, is able to recall with pleasure the remarkable collegiate spirit of the Justices during his decade of service on the Supreme Court. He was evidently not at risk of suffering the alleged fate of Lord Atkin after his judgment in Liversidge v Anderson. I hope that this review has conveyed the flavour of this book which is an enjoyable as well as a stimulating ‘insider’s view’ of the judicial process at the highest level.

Is it time to rebrand legal professional privilege in EC competition law? An updated look

The scope of legal professional privilege (LPP) in EC competition law remained unchanged after the European Court of First Instance (CFI) ruled on 17 September 2007 that the privilege would not be extended to written legal advice communications between clients and in‐house lawyers, regardless of whether the lawyer is a member of a bar or law society. 1 The CFI judgment 2 confirmed existing EC jurisprudence, 3 which limited the privilege in 1982 to communications made by or to independent external lawyers in private practice in one of the EU Member States. 4 The Akzo decision also explained the procedure that the European Commission (the Commission) must follow in the future when documents are discovered during an inspection (‘dawn raid’) and privilege is claimed by the target of the investigation. Furthermore, the Akzo decision clarified the possible application of the privilege to preparatory documents. This paper examines the Akzo decision in detail and suggests that, given its current application, the privilege in EC competition law should no longer be referred to as legal professional privilege, which is an English common law expression equally covering legal advice communications to and from in‐house lawyers and private practitioners and their clients (as well as litigation privilege). 5 The EC term should be renamed to more accurately reflect its judicially‐delineated limits, thereby enhancing legal predictability and fostering a better awareness of its precise reach. 6 The paper also considers the current state of the law on privilege in Canada, England and Wales, and Scotland; as well as featuring a brief overview of the privilege provisions in Commonwealth EU Member States. 1Joined Cases T‐125/03 and T‐253/03, Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v Commission of the European Communities (the ‘Akzo decision’). Judgment of the Court of First Instance, delivered in open court, Luxembourg (17 September 2007) ⟨http://www.eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62003A0125:EN:HTML⟩ accessed 29 October 2008. 2Appeal pending. See below. 3 AM&S Europe Limited v Commission [1982] ECR 1575 (‘AM&S’). 4 AM&S was the first case in which the Court of Justice of the European Communities or European Court of Justice (‘ECJ’) ruled on how the privilege should apply in EC law. 5There are two branches of common law legal professional privilege: legal advice privilege and litigation privilege. Legal advice privilege protects the confidentiality of bona fide legal advice communications between lawyers and clients. Litigation privilege covers situations where the dominant purpose of confidential communications between a lawyer, client or third party is in connection with, or in contemplation of, legal proceedings. One commentator distinguished the two forms of LPP this way: ‘First, [legal] advice privilege protects confidential communications between a client and his legal adviser made for the purpose of giving or seeking legal advice. Second, litigation privilege, by contrast, is capable of extending beyond advice given by legal advisers, and will embrace communications with third parties, and documents prepared by third parties, where such communication comes into existence for the dominant purpose of being used in connection with actual or contemplated litigation.’ Diane Gilhooley, ‘The scope of legal professional privilege’ Times Higher Education (31 July 2008) ⟨http://www.timeshighereducation.co.uk/story.asp?storyCode=403049&sectioncode=26⟩ accessed 27 May 2009. The doctrine is also referred to as ‘legal professional privilege’ in EC competition law, although its application is strikingly different from the common law version. See below. 6The privilege in EC competition law as determined in AM&S has also been called ‘a limited concept of legal professional privilege’. See Noticeboard, Cases and Comments, Legal Professional Privilege – European Union (2008) 12 E&P 72 at 72.

Are EU dawn raid procedures on a collision course with the ECHR? Does a cautionary tale from Canada offer guidance?

There is a striking contrast between Canada and the European Union (EU) with respect to the authorities’ ability to search computers and mobile phones – and this contrast invites exploration, comparison, review and comment. Specific and prior authorisation to search computers and mobile phones is required in Canadian law except for searches incident to arrest in narrowly defined instances. This position differs dramatically with sweeping inspections of data in EU competition law investigations where no specific authorisation is needed to search electronic devices in the course of a dawn raid. This paper compares the law in Canada regarding searches of electronic data where the Supreme Court of Canada (SCC) ruled in 2013 that specific and prior authorisation is required to search a computer (including mobile phones). The law was refined by the SCC in 2014 to allow for warrantless searches of mobile phones incident to arrest provided specific safeguards are adopted. The law in Canada is polar opposite to EU law where no expectation of computer privacy and no specific authorisation are afforded for inspections of electronic devices

Solicitor–client privilege

Canada’s solicitor–client privilege, referred to as legal professional privilege in the EU and other jurisdictions of the Commonwealth such as England, Australia, New Zealand and South Africa, dates back to at least the sixteenth century and is a fundamental principle of the common law. Broadly stated, the privilege protects the disclosure of confidential legal advice communications between a lawyer and client. The privilege belongs to the client and only the client can waive it, but cannot be compelled to do so. With Solicitor–Client Privilege, Professor Adam Dodek of the University of Ottawa admirably sheds light on this often misunderstood doctrine with its many exceptions and exclusions. Dodek’s book, featuring a foreword by the Honourable Ian Binnie, retired Supreme Court of Canada justice, examines the privilege from the Canadian perspective, highlighting case law in other jurisdictions where necessary to help explain, contrast and bolster his thinking. The author’s meticulously referenced volume is the first significant work on the subject since 1993s well-known and often cited Solicitor–Client Privilege in Canadian Law by Ronald Manes and Michael P Silver. Dodek neatly breaks down Solicitor–Client Privilege into three main parts: the privilege’s origin and evolution; its application and exceptions; and the privilege in civil litigation. Solicitor–Client Privilege is underpinned by John Henry Wigmore’s well-recognised and accepted definition, which states:

Residential real estate brokerage services under attack in Canada

If Canada’s Competition Bureau gets its way, there will be greater competition in the residential real estate brokerage business, commission rates will fall and the public will have enhanced access to the Multiple Listing Service. To this end, the Bureau announced on 8 February 2010 that a notice of application would be filed with the Competition Tribunal challenging the way the Canadian Real Estate Association conducts business. The association filed its response six weeks later. Regardless of the ultimate outcome of this action, it is safe to say that the face of Canadian residential real estate brokerage services will never be the same. Commonwealth Law Bulletin editorial advisory board member Gavin Murphy explains.

Provincial law reform agencies in Canada: are they really that different from the Scottish Law Commission?

This article provides an overview on the structure and guiding principles of the new Law Commission of Ontario and considers the present state of law reform at the provincial level. The author suggests that the establishment of the Ontario agency continues a trend that started about a decade ago with provincial governments reversing earlier decisions to either close down or cut funding to agencies. 1 He indicates that the launch of the Law Commission of Ontario is a positive development and could signal further interest and renewed support for provincial law reform in Canada. The article also examines the history, mandate and work of the Scottish Law Commission and concludes that the challenges it faces are similar to those confronting Canada’s provincial law reform agencies. 1 Gavin Murphy, ‘The Rise, Decline and Current Status of Canada’s Law Reform Agencies’ (2004) 30 CLB 900.

Acquisition‐Hungry Premier Swallows RHM*

Premier Foods was successful in becoming the UKs largest grocery supplier in early 2007 after the Office of Fair Trading (OFT), the UK competition authority, approved its £1.2 billion purchase of RHM. The merger means that iconic brands often found in British kitchens, such as Hovis breads, Lyons cakes, Birds custard, Branston pickle, and dozens of other well‐known products, will now be manufactured by the same food group. * This is a revised version of an article that first appeared in the European Competition Law Review [2007] ECLR 433. Reprinted with permission of Sweet & Maxwell and the author. ** Gavin Murphy, Legal Counsel, International Development Group, Department of Justice of Canada, Ottawa. Mr. Murphy worked at the Office of Fair Trading in the 1990s. He is a member of the Editorial Advisory Board of the Commonwealth Law Bulletin. Gavin Murphy examines the OFTs merger assessment.

UK Competition Watchdog Urged to Step it Up

Free and open competition is a good thing, but anti-competitive behaviour is a bad thing. Anti-competitive activities such as conspiracy, bid-rigging and abuse of a dominant position are detrimental to consumers and lead to increased prices and reduced product choices and quality. As a result, the United Kingdom’s economic policy promotes competition and penalises those engaged in lessening competition through anti-competitive behaviour. It is the remit of the Office of Fair Trading (the OFT), the UK’s leading competition authority, 1