Exceptions to Litigation Privilege

A. Freedom of Information

The Freedom of Information Act 2000 gives the public a right of access to certain information held by public authorities. It therefore affects lawyers in public organisa­tions.

⁷⁵ ibid, per Lord Hoffmann at [32].

⁷⁶ BSB, Bar Code of Conduct 2014, gC93.

⁷⁷ Great Atlantic Insurance v Home Insurance [1981] 1 WLR 529, at 536.

⁷⁸ See ‘Waiver of Litigation Privilege’ (section VC)

and education authorities. There are exemptions, classified as either absolute or quali­fied exemptions. Where the exemption is qualified a balance must be struck between the public interest in maintaining confidence and that in requiring disclosure. The Act treats information held under a legal duty of confidence as one of eight absolute exemptions. If disclosure would amount to an actionable breach of confidence then the information is treated as exempt.^[1607]

The Act also provides qualified exemption based on whether information falls into a particular class or whether particular types of harm might ensue from disclosure. One of the classes of exemption relates to information in respect of which a claim to legal professional privilege could be maintained.^[1608] There are various categories of harm which might also give rise to a claim of exemption. These include cases where disclosure might endanger the physical or mental health or safety of an individual^[1609] or prejudice commercial interests.^[1610]

Whether or not information subject to qualified exemption must be disclosed is determined by application of a public interest test. Therefore, potentially privileged material relating to a public authority must be revealed if the public interest in dis­closure outweighs the public interest in keeping it confidential.

B. Children Act 1989

i. Dominant Public Policy in the Care and Welfare of Children

a. The Investigative Nature of Children Act Cases

The Children Act 1989 provides for securing the welfare of children and for allocating responsibility for their care between parents, local authorities and other bodies. It pro­vides mechanisms for deciding who has responsibility for the child and for determining issues such as residence and contact. While the Act works from the premise that children are generally better off in their families, it promotes diligence in recognising and dealing with situations where this is not the case.

An issue in Children Act cases is the extent to which potentially confidential mate­rial connected with the child’s arrangements or welfare is protected from disclosure. One reading of the vague and conflicting case law is that legal professional privilege does not apply in Children Act cases.^[1611] This is because Children Act proceedings have been considered investigative rather than adversarial.^[1612] This line of thought makes two assumptions. The first is that the proceedings are not, in reality, experienced as adversarial by the parties, especially the parents. The second is that privilege is justi­fied only in adversarial settings. These assumptions have been called into question by the cases.

b. Expert Reports

Another reason why Children Act cases are exceptional lies in treatment of expert reports. The general policy of the Children Act is that the welfare of the child is para­mount. Litigation privilege has therefore been overridden in order that expert reports are made available to the parties and the court, including in subsequent proceedings. This policy is supported by the Family Proceedings Rules 1991, particularly Rule 4.23.

Starting with Re A^[1613] the courts have denied recognition of legal privilege to experts’ reports in Children Act proceedings. The precise scope of the exception was not clear. In 1996 in Re L the House of Lords had an opportunity to consider the issue. The mother, a drug addict, had, through her solicitor, commissioned a report by a chemical pathologist on how her child had come to take methadone. The consultant evidently thought that it had been administered by the mother, whereas her story was that the child had swallowed it accidentally.

The report was disclosed to all parties in the care proceedings under the normal procedures. The police were not parties to the care proceedings. They heard of the existence of a report at a case conference. They sought a copy of the report with a view to instituting criminal proceedings against the mother. The mother claimed that the report was covered by legal professional privilege, and also the privilege against self-incrimination.

Lord Jauncy gave the sole judgment for the majority of the House of Lords in Re L. He recognised that the privilege attaching to solicitor and client communications was absolute, but he considered that reports by third parties for the purposes of litigation were not covered by privilege in care proceedings under the Children Act. This was because such proceedings were non-adversarial and investigative. Further, because the documents were not covered by privilege, there was no need to decide whether it was in the public interest to order their disclosure.^[1614]

ii. Significant Doubts

Re L was notable because the court was willing to ignore privilege for a purpose arguably unconnected with the purposes of the Children Act. A powerful dissenting judgment was given by Lord Nicholls, with which Lord Mustill agreed.

If the Children Act had abrogated privilege, then the Family Proceedings Rules 1991, Rule 4.23, specifying disclosure of evidence, would not have been required. Lord Nicholls thought that privilege cannot be split into legal advice privilege and litigation privilege covering third party reports. Both are equally privileged. It is worth noting that the decision of the majority in Re L was contrary to the decision of the House of Lords in the Derby Magistrates case.

Lord Nicholls' dissent asserts the fundamental importance of the right of parties to family proceedings to a fair hearing. This includes the right to the same safeguards enjoyed by parties to other proceedings. He suggested that

it must be doubtful whether a parent who is denied the opportunity to obtain legal advice in confidence is accorded the fair hearing to which he is entitled under Article 6(1), read in conjunction with Article 8, of the European Convention of Human Rights.^[1615]

iii. A Duty to Disclose without Order?

One consequence of Re L could be that a court order is not needed to secure disclo­sure. Their Lordships were not clear on this point. Lord Jauncy considered the issue of whether solicitors have a ‘duty' to make a ‘voluntary' disclosure of ‘all matters likely to be material to the welfare of the child'.^[1616] He referred to cases suggesting that no court order is needed,^[1617] but did not find it necessary to decide the issue. He did say that ‘this further development of the practice in cases where the welfare of children is involved [may well be] welcomed'.^[1618] These remarks did not seem to be confined to reports by third parties.

If it is argued that there is a duty to disclose in third party reports in Children Act cases, it is not clear what penalty applies for non-disclosure. Failure to disclose would be contempt of court only where a court order had been made. It is doubtful that failure by the solicitor or barrister to disclose without an order would amount to professional misconduct. Unnecessary disclosure could render lawyers vulnerable to action by clients. It is therefore safer for lawyers in Children Act cases to preserve con­fidentiality in the absence of a specific order. Clearly there are issues here which have not been explored by their Lordships in Re L and the law is in need of clarification.

iv. Professional Guidance

In the light of the uncertain case law, a solicitor must be cautious when acting for parents whose behaviour could be considered prejudicial to their child’s welfare. Any report commissioned for litigation could be subject to disclosure in future Children Act proceedings. Lawyers should therefore obtain all existing medical reports and information before deciding to commission another report, and also ensure that the expert instructed is fully informed about the risk of disclosure.

In 1994 the Law Society advised solicitors to consider carefully with their client whether or not to commission an expert’s report.^[1619] Although this guidance has been consistently updated, it does not currently include this advice.^[1620] The guidance to the 2007 Code noted a duty to reveal experts’ reports, but also that ‘the position in rela­tion to the voluntary disclosure of other documents or solicitor client communication is uncertain’.^[1621] Reading between the lines, this guidance might be construed as advice not to commission reports unless absolutely unavoidable and not to disclose them unless ordered. The rest of the guidance was at odds with this interpretation.

Solicitors finding themselves in situations where they were under a duty to disclose a report adverse to their client were reminded of the general duty not to mislead the court. They were told to persuade the client to agree to disclosure on the ground that this would enable the solicitor to do a better job. The solicitor was effectively being advised to sell clients the idea that disclosure was usually in their interest. The notion that this is a disinterested perspective was somewhat undermined by a reminder that failure to reveal adverse information may result in the solicitor being subject to ‘severe criticism’ by the court.

In cases where clients would not authorise disclosure of adverse reports, and this would result in a breach of the obligation to the court, solicitors were advised to withdraw from the case. This advice did not reflect the ambiguity of the legal situ­ation or a very supportive line on client autonomy. Whether the rule in Re L covers private, as well as public, proceedings involving children is also unclear. Certainly the justification for the Re L rule, that the proceedings are not adversarial, can also be used in private cases.

C. Waiver of Litigation Privilege

i. Scope of Disclosure

Litigation privilege in relation to documents can be waived by clients. Such waiver is difficult to control. Where part of the report of an expert witness is given to the other side, for example, the litigation privilege in all of the report is waived. In Clough v Tameside and Glossop Health Authority,^[1622] Bracewell J stressed that her decision was also based on the need to make the litigation process more open, in the light of the Woolf Report. She noted that, ‘[a]lthough civil litigation is adversarial, it is not per­missible to withhold relevant information, nor to delete nor amend the documents of a report before disclosure, as was submitted... to be the practice of some firms of solicitors’.^[1623]

The principle that disclosure cannot be selective applies generally. Therefore, once privilege in a document is waived for one purpose, it cannot be retained for other purposes.^[1624] The client’s reasons for trying to make a limited disclosure are irrelevant. Nor, when privilege in a report is waived, can privilege in any background material referred to in the report be retained. The possible exception to this general position is that waiver cannot be implied where documents are handed to the police in order to assist a criminal investigation.^[1625]

It may be possible to waive privilege over some documents but not others, but par­tial waiver must be fair. For example, where the documents relate to the same issue, and are not severable, then waiver of one may lead the court to order the discovery of the other. This is because ‘to allow an individual item to be plucked out of context would be to risk injustice through its real weight or meaning being misunderstood’.^[1626] Merely mentioning a privileged document in a witness statement, however, does not automatically mean that privilege is waived.^[1627]

There is some confusion about the point in the proceedings that an opposing party is entitled to the additional related documents where there has been partial disclosure. Some authorities consider that additional documents are not discoverable until those originally waived have been used in court.^[1628] In R v Secretary of State for Transport ex parte Factortame and Others (No 5),^[1629] however, Lord Justice Auld, held that, while the effect of partial disclosure depended on the facts of the case, additional discovery could be ordered as soon as the documents, in relation to which privilege was waived, were disclosed.

ii. Disclosure in Error

If documents are disclosed by accident or mistake there is no implied waiver. If solici­tors acquire information from the other side which is clearly confidential and came to them by mistake, then the information must be returned^[1630] and cannot be used in litigation.^[1631] Where a solicitor, on a client’s instructions, read documents obviously sent in error, he may be restrained by injunction from taking further part in the relevant proceedings.¹⁰⁴ The only possible circumstance in which the courts may make an exception to the strictness of this rule is where the mistake would not have been obvious to a reasonable solicitor.¹⁰⁵

D. Waiver by Operation of Law

Waiver can sometimes result from the operation of law, independent of the express or implied consent of the client. In R v Bowden,¹⁰⁶ the defendant, B, acting on legal advice, refused to answer police questions. After the interview, B’s solicitor made a statement setting out the grounds of this advice. At trial the Crown led evidence of B’s refusal to answer questions, but not of the solicitor’s statement. Defence counsel, seeking to avoid any adverse inference being drawn from B’s refusal to answer ques­tions, asked the interviewing police officer about the solicitor’s statement. The judge accepted the Crown’s argument that B had thereby waived privilege. B was cross­examined about what he had told his solicitor. B was convicted and appealed. The Court of Appeal upheld the decision that legal privilege was waived.