Neither party mentioned Berry v. Cypost Corp., supra, in which Burnyeat J., in his words, “classif[ied] the continuing exceptions”, and “set out some of the decisions which have established those exceptions”. It is the one case I have encountered which specifically asserts that use of otherwise privileged correspondence to prove confirmation in response to a limitations defence is an “established exception”. However, that assertion is also obiter, as the communications in issue were admitted to show that a party to them had acknowledged lying, and credibility was critical to the case. Clearly, that is a circumstance in which use of the privilege to exclude the evidence, would be an abuse of the privilege. The case was not, in any manner, related to confirmation in response to a limitations defence.
"The most advanced legal research software ever built."
The above passage should not be considered legal advice. Reliable answers to complex legal questions require comprehensive research memos. To learn more visit www.alexi.com.