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Report No. 93

2.9. Wigmore's statement of the rationale.-

The situations in which a privilege should be recognised has been the subject of much learned discussion. Four conditions must, according to Wigmore, be fulfilled before a privilege against disclosure should be enacted in the law of evidence. His statement of the position has almost become a classic. The conditions are:1

(1) The communication must originate in a confidence that the facts communicated will not be disclosed.

(2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relationship between parties.

(3) The relation must be one which, in the opinion of the community, ought to be sedulously fostered.

(4) The injury that would injure to the relation by disclosure of the communications must be greater than the benefit gained by the disclosure for the correct disposal of the litigation.

1. 8 Wigmore Evidence (Mc Naughten, Edn., 1961), para. 2235.

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