The Shelby case concerned a joint written defence agreement, but the Court of Appeal did not contain a language that required a written agreement. The Court`s ruling provided for two essential aspects of the agreement: a common interest and an agreement to keep the information confidential. The decision was not made as to the more sensitive issue of whether disclosure between the client and the client falls within the exemption of common interest without the presence of counsel was not decided in the decision. Moreover, it did not rule on two other critical issues, leaving the scope of the doctrine unresolved. First, the Tribunal did not rule whether the doctrine went beyond genuine litigation beyond the threat of litigation. Second, the Court of Appeal also did not rule on the need for a written or anticipated agreement between the co-accused. Second, in such circumstances, cooperation between the accused is often not only in the self-interest, but also speeds up the trial or prepares for the trial. Co-counsel in multi-party cases often pool their resources in court; one lawyer may question one opponent`s witness, while the other may focus on another witness; One can deal with the opening statement, while another focuses on the sum. Entire parts of the defence or the continuation of a case may be divided between the parties.
This division of labour not only helps the various parties on the same side of the case, it also promotes efficiency in the courts and prevents appropriate redundancy in interrogation and argument. The investigation process is also best served when parties can pool resources to avoid unnecessary repetition. What communication is protected? The common privilege of the defence, also known as the « common interest exception, » is based on the common interest of the co-accused in defeating an applicant`s claims against them.6 Therefore, the mere status of co-accused does not grant all communications of the co-accused by right.6 If the accused conspired against the complainant, as in Selby, or where the principles of response to a higher or common and multiple liability apply, there is no doubt that the co-accused share a common defence strategy (« If you lose, I lose »). However, let us take the example of a product liability action, in which the first co-accused, the manufacturer, claimed that the co-accused distributor had introduced a possible deficiency in the product. The interests of these co-accused diverge (« If you lose, I win »), and the privilege does not apply. Where the co-accused A points the finger at the co-accused B, their communications will be detrivable. Who`s protected from communicating? Nor does the common privilege of the defence protect all co-accused communications at any time.