§ SECTION 133 · BSA 2023 · CHAPTER IX — OF WITNESSES

Privilege not waived by volunteering evidence

The seal is not lost by accident. A party who gives evidence himself does not thereby waive the § 132 privilege; and merely calling his advocate as a witness is not waiver either — only questioning the advocate on the protected matters is.

How to read Section 133

Giving evidence yourself, or even calling your advocate, does not surrender the privilege — only questioning the advocate on the protected matters does.

Testifying is not waiver

A party who gives evidence — at his own instance or otherwise — is not deemed to consent to disclosure of his § 132 communications.

Calling the advocate is not waiver

If he calls his advocate as a witness, that alone does not waive the privilege.

Questioning is

He is deemed to consent only if he questions the advocate on matters the advocate could not otherwise disclose.

The bare Act

The section in its own words — two limbs: giving evidence, and calling the advocate.

Section 133 · verbatim

Giving evidence. If any party to a suit gives evidence therein at his own instance or otherwise, he shall not be deemed to have consented thereby to such disclosure as is mentioned in section 132;

Calling the advocate. and, if any party to a suit or proceeding calls any such advocate, as a witness, he shall be deemed to have consented to such disclosure only if he questions such advocate, on matters which, but for such question, he would not be at liberty to disclose.

In short: the privilege in § 132 is the client’s, and this section stops it from being lost by accident. First, a party who steps into the witness box and gives evidence — whether by choice or because he was called — is not taken to have consented to the disclosure of his protected professional communications; testifying about the case is not the same as opening up what passed with his lawyer. Second, even calling his own advocate as a witness does not, by itself, amount to consent. The line is drawn precisely: the party is deemed to consent only if he actually questions the advocate on matters which, but for that question, the advocate would not be at liberty to disclose. In other words, waiver is deliberate and specific — it follows from asking about the protected content, not from the incidental steps of giving evidence or putting the lawyer on the stand.

→ This carries forward IEA 1872 § 128 — the professional privilege is not waived merely by volunteering evidence.

Glossary

at his own instance or otherwise

Whether the party chose to testify or was called to.

consented to such disclosure

Gave the express consent that § 132 requires to lift the privilege.

disclosure as is mentioned in section 132

Disclosure of the client’s protected communications, documents and advice.

calls any such advocate as a witness

Puts his own advocate into the witness box.

questions such advocate on matters…

Actually asks the advocate about the protected content.

but for such question… not at liberty to disclose

Matters the advocate could not reveal but for being asked about them.

The picture

The seal holds through testifying and through calling the advocate — it lifts only when the party questions him on the protected matters.

The section, part by part

Tap a part — the picture-story tells it first; the word-by-word text and example follow.

Giving evidence (1)Calling vs questioning (2)

testifyingStepping into the witness box does not open the file

In one lineA party who gives evidence — whether by choice or because he was called — is not deemed to have consented to disclosure of his § 132 communications.

If any party to a suit gives evidence therein at his own instance or otherwise,a party takes the stand…whether he chose to give evidence or was called to…

he shall not be deemed to have consented thereby to such disclosure as is mentioned in section 132;→ that is NOT consent to disclosure…he is not deemed to have consented to the § 132 disclosure of his professional communications.

ExampleA plaintiff testifies fully about the facts of his case. He has not, by doing so, agreed that his lawyer’s advice or their communications can now be dragged out — the privilege stands.

✗ Not thisIt makes no difference that he testified voluntarily. ‘At his own instance or otherwise’ — neither choosing to testify nor being compelled to counts as consent.

calling vs questioningPutting the lawyer on the stand is not enough — asking him is

In one lineCalling the advocate as a witness is not waiver; the party is deemed to consent only if he questions the advocate on matters he could not otherwise disclose.

and, if any party to a suit or proceeding calls any such advocate, as a witness,calling the advocate…putting his own advocate into the box is, by itself, not consent…

he shall be deemed to have consented to such disclosure only if he questions such advocate, on matters which, but for such question, he would not be at liberty to disclose.→ consent only on questioning the protected content…he is deemed to consent only if he asks the advocate about matters he could not otherwise disclose.

ExampleA party calls his advocate to prove a date or an attendance — the privilege holds. But if he asks the advocate what advice he gave on the disputed transaction, he is deemed to have consented to that disclosure.

✗ Not thisThe deemed consent is narrow: it reaches only the matters actually asked about. Calling the advocate for a neutral fact does not throw the whole file open.

Connected provisions

§ 132 · back

IEA 1872, § 128

Carried forward — professional privilege is not waived merely by volunteering evidence.

BSA 2023 § 133 — Privilege not waived by volunteering evidence