A PRIVILEGE TO READ : THE LAW OF PRIVILEGE 3rd EDITION: COUPLED WITH SOME RECENT EXAMPLES – TO SHOW WHY YOU NEED IT
The Law of Privilege is now in its third edition. I have been reading through it and planning a review for some time. I came across the decision, on BAILLI today in Fleming v East of England Ambulance Service NHS Trust [2017] UKEAT 0054. A case that shows issues of privilege can become significant in every area of litigation. This case, coupled with the recent Court of Appeal decision in Kerman v Akhmedova [2018] EWCA Civ 307 shows that there is a pressing need to have a definitive guide to the law and practice of privilege to hand.
FIRST THE BOOK: A PRIVILEGE TO READ IT
I prefer a direct style of book review. Basically readers want to know if they should buy the book or not. Well, if you are in practice then, at some time during the year, you are going to need (or wish you had) this book. Privilege is one of those issues that crops up in all areas of litigation, usually unexpectedly and mostly in an extremely unwelcome context . The issues require answers, invariably they require answers quickly.
A practitioner’s text
This is a magnificent piece of scholarship. However, if you are a practitioner, don’t let the term “scholarship” put you off. This is a practitioner’s book. It provides easy access to the particular subject that will be causing concern when consulted. The editorial team ensures that the authority of the work is beyond doubt (Bankim Thanki QC, Chloe Carpenter, James Cutress, Patrick Goodall QC, Henry King QC, Rebecca Loveridge, Tamara Oppenheimer, Nik Yeo, and Rosalind Phelps QC).
Ease of use
The chapter headings (and sub-headings) show the breadth and depth of the book.
- Legal professional privilege: Fundamental Principles.
- Legal Advice Privilege.
- Litigation Privilege.
- Legal Professional Privilege: General Issues.
- Loss of Privilege.
- Joint and Common Interest Privilege.
- Without Prejudice Privilege.
- Privilege against Self-incrimination.
A practitioner, in a hurry, will have no difficulty in finding the precise issue.
LOSS OF PRIVILEGE
Taking this chapter as an example. There are five major headings together with a number of sub-headings.
- Introduction.
- Loss of confidentiality.
- Waiver.
- Effect of waiver.
- Restraining the use of Privileged or Confidential documents.
We have looked, several times, on this blog at cases where the use of privileged documents in witness statements has led to arguments that privilege has been waived. The book has an entire section on waiver of privilege. It points to a few anomolies:
(1) A witness statement served is subject to the collateral undertaking under CPR 32.12, this will prevent any use of the statement, except for the purpose of the proceedings for which it is served.
(2) There is no equivalent protection under the CPR for affidavits.
The way that privilege can be waived in statements of case and witness statements is also explored in detail.
RECENT EXAMPLES OF PRIVILEGE BEING CONSIDERED
Taping a meeting
Fleming v East of England Ambulance Service NHS Trust [2017] UKEAT 0054
The applicant brought an action for unfair dismissal. He wished to rely on his recording of conversations involving internal panel members during the breaks in a disciplinary hearing which took place on 13/8/15. The Employment Judge ordered that he could not rely on the recording for any purpose at the Full Hearing on the basis that its contents were “private/legally privileged”.
The issue before the Employment Appeal Tribunal was whether the recording, or all of it, was subject to legal professional privilege.
THE JUDGMENT ON THIS ISSUE
His Honour Judge Shanks considered the arguments.
(1) Legal professional privilege covers confidential communications between a lawyer and client for the purpose of giving or obtaining legal advice.
(2) “Legal advice” covers all advice given by a lawyer in her capacity as such (Three Rivers District Council v Bank of England (No 6) [2005] 1 AC 610).
(3) The privilege is absolute; it belongs to the client and can only be waived by the client.
(4) The privilege does not apply where the purpose of seeking or giving the advice is to effect “iniquity” (Barclays Bank plc v Eustice [1995] 1 WLR 1238).
(5) “Iniquity” involves conduct which goes beyond a mere civil wrong: there must be something akin to sharp practice or fraud or something which the law treats as entirely contrary to public policy (BBGP v Babcock [2011] Ch 296).
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I have considered the references to the advice given by the Trust’s solicitors and the contents of the conversation between Mrs Shah and Mr Ashford (and Ms Adams) during the second break and am satisfied that they are, on the face of it, privileged, but I can see no basis for saying any other parts of the recording are privileged.
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Ms McCafferty suggested that this was a case where the purpose of seeking or giving the advice was to effect iniquity but the evidence does not, in my view, come close to showing that the purpose was to effect “iniquity” as that term is used in the authorities. Further, it is clear that, at least on 13 August 2015, if there was an iniquitous scheme, Mr Ashford and Ms Adams were not part of it and did not seek or refer to any advice from the solicitor with a view to carrying it out.
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In my view therefore the claim to legal professional privilege advanced by the Trust is valid. Unless privilege is waived, Mr Fleming may not at the Full Hearing before the ET make any use of (a) references to the solicitor’s advice in the course of conversation between Mr Ashford and Ms Adams or (b) any part of the telephone conversation between Mrs Shah and Mr Ashford (and Ms Adams).
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The Public Policy in Relation to Private Deliberations of an Internal Grievance/ Disciplinary/Appeal Panel
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I was referred to three EAT authorities on this topic: Chairman and Governors of Amwell View School v Dogherty [2007] ICR 135, Williamson v Chief Constable of Greater Manchester Police (unreported, UKEAT/0346/09/DM, 9 March 2010), and Punjab National Bank v Gosain(unreported, UKEAT/0003/14/SM, 7 January 2014). It seems to me the legal position is as follows in relation to evidence of the private deliberations of an internal panel:
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(1) The fact that such evidence is the product of a covert recording is not in itself a ground for not admitting it.
(2) There is however an important public interest in preserving the privacy of such deliberations; otherwise, full and open discussion may be inhibited and the integrity of the outcome may be undermined.
(3) When a party seeks to rely on such evidence a balance must be struck between that public interest and the public interest in litigants being able to avail themselves of any relevant evidence.
(4) The balance must be struck having regard to the particular circumstances of the case; that may involve a consideration of the nature and quality of the deliberations on the one hand and the value and weight of the evidence on the other.
(5) In a discrimination case where a panel gives no reasons and the only (and incontrovertible) evidence of discrimination comes from a recording (or evidence from one of the panel members) of the panel’s private deliberations, or where such deliberations show that the panel are simply acting under instructions from management, it is likely that the evidence will be admitted but there are no hard and fast rules and a balance must be struck in each case.
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Turning to this case, and leaving out any consideration of the parts of the conversation subject to legal professional privilege, it is right to say that the discussions recorded were not expressly stated in advance to be “private deliberations” (as in Amwell) and that they were not final deliberations. However, they were all (including the discussion between Ms Adams and the note taker) directly related to the hearing the panel was carrying out and the decision it had to make about how to proceed and it must have been in everyone’s contemplation that such matters would be discussed by the panel members during any breaks while the parties were absent and that such discussions would be private. In my view there is therefore a strong public interest in preserving their privacy.
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Ms McCafferty maintained that some of the statements made in the course of the conversation, in particular by Mr Ashford, were “uniquely probative” of the issues in the claim because they contained “direct evidence of discriminatory and offensive attitudes to Mr Fleming’s disability”. Although they may have some probative value in relation to the complaint of discrimination, I am afraid I cannot accept that they provide “uniquely probative” or incontrovertible evidence of discrimination. The comments relied on clearly arose from Mr Fleming’s behaviour and state on the day, not from the mere fact of his disability; it is fair to say they express some exasperation (both with his behaviour and the difficult situation the panel found themselves in) and that some of them are not expressed in an ideal way, but the panel were deliberating as they thought in private and it is noticeable that they also express some sympathy for Mr Fleming’s position and that the course taken by Mr Ashford does not indicate any kind of animus against him.
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In the circumstances, if the events of 13 August 2015 had been “the end of the story” I would have had no hesitation in deciding that the public interest in preserving the privacy of private deliberations prevailed in this case. However, the fact is that Mr Fleming listened to what had been said in the breaks and let Mr Ashford (and indeed Ms McCall) know his views about what he had heard before the decision was taken to dismiss him. It does not seem to me that that decision can be properly assessed by the ET without reference to what happened after the meeting and to the actual content of the discussions which led Mr Fleming to adopt the position he did (save, necessarily, in so far as they are privileged). In those unusual circumstances it seems to me that the balance is tipped in favour of the admission of the evidence of what was said in the breaks.
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For clarity I should say that the effect of this decision must be, I think, that Mr Fleming is able to rely on this evidence for any purpose, including to support his case that the disciplinary procedure was inappropriate and that Mr Ashford was motivated by a discriminatory attitude towards him.
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Conclusion
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I therefore rule that Mr Fleming should be allowed to present evidence to the ET about what happened during the breaks and his reaction to it, except in so far as it is covered by legal professional privilege as set out above. Any transcript produced or recording played at the hearing will need to be carefully checked to see that it does not disclose privileged material and there may need to be careful editing of the documents in the case and Mr Fleming’s witness statement. I would recommend in this connection that there is a further case management hearing before a different Judge to the one who is to deal with the final hearing to make sure there are no “crossed lines”.
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This is an edited version of the Judgment provided to the parties which has been prepared with a view to publication by excluding any reference to the content of the advice which is subject to LPP.”
SECOND EXAMPLE
Husband’s solicitor summonsed as a witness
Kerman v Akhmedova [2018] EWCA Civ 307
Aa solicitor was summonsed to give evidence in financial remedy proceedings. He was summonsed by the wife. The solicitor had acted for the husband. The summons prevented him from discussing the summons itself (except for the purpose of taking legal advice). The solicitor appealed, arguing that the information he held was subject to legal professional privilege. The appeal was dismissed by the Court of Appeal.
The judgment on legal professional privilege
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“I return to the first ground of appeal, relating to legal professional privilege.
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The law relating to legal professional privilege is well-settled by the authorities: see, in particular, Three Rivers District Council and others v Governor and Company of the Bank of England (No 6) [2004] UKHL 48, [2005] 1 AC 610. The overarching principle is that confidential communications between client and solicitor for the purpose of obtaining legal advice – what the client tells the solicitor and what the solicitor advises his client – are privileged from discovery or disclosure. Legal professional privilege, once established, is absolute and permanent. It confers on the client, as the person entitled to the privilege, the right to decline to disclose or allow the disclosure of the confidential communications in question. It is long established that it is the duty of the solicitor to defend the client’s privilege.
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Legal professional privilege attaches to “legal advice” given by the solicitor to the client, so the question is whether the communication or document was made confidentially for the purpose of “legal advice”. This is not confined to telling the client the law, but includes “advice as to what should prudently and sensibly done in the relevant legal context”: see Lord Taylor CJ in Balabel v Air India [1988] Ch 317, 330. But where the solicitor is acting not as the client’s legal adviser but as the client’s “man of business”, there will be no legal professional privilege. As Lord Scott of Foscote said in Three Rivers District Council and others v Governor and Company of the Bank of England (No 6) [2004] UKHL 48, [2005] 1 AC 610, para 38:
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“If a solicitor becomes a client’s “man of business” (and some do) advising the client on investment matters, finance policy and other business matters, the advice may lack a “relevant legal context”.”
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It is long established that there is an exception – what for shorthand I will label the ‘fraud exception’ – where legal professional privilege does not apply: see The Queen v Cox and Railton (1884) 14 QBD 153.
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Before Haddon-Cave J the controversy centred on two issues. One was whether, in relation to the matters on which he was being questioned, Mr Kerman had been acting qua legal adviser or qua man of business. The other was whether the ‘fraud exception’ applied. Before us, Mr Shepherd challenged Haddon-Cave J’s findings on both issues.
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In relation to the first, Haddon-Cave J seems to have come to the conclusion, though without deciding, that in relation to both transactions Mr Kerman had been acting as a “man of business.” He said (Z v Z, paras 16-18):
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“16 In my view, the arranging of insurance is something that a “man of business” would do for a client rather than qua solicitor. Arranging insurance is a fairly routine matter, involving instructing brokers. It would not generally involve giving legal advice … I am not persuaded by Mr Warshaw QC that the possibility that a client might have asked a lawyer “what to do” with a valuable asset necessarily cloaks the mere arranging of insurance with a “relevant legal context”.
17 There was very little argument on whether there was a “relevant legal context” as to any communications between H and [Mr Kerman] as regards [Cotor]’s monetary asset. In my view, advice or assistance given by [Mr Kerman] to H in relation to [Cotor]’s bank accounts with [UBS] again is more redolent of something that he would do as a “man of business” rather than qua solicitor.
18 In any event, as set out below, I am satisfied that the “fraud” exception applies to both the modern art collection and to [Cotor]’s bank account and this is determinative of the matter (see below).”
“20 In the light of these findings, it is clear in my view, that the fraud or “iniquity” exception applies in this case. H’s conduct has been seriously iniquitous. He has displayed a cavalier attitude to these proceedings and a naked determination to hinder or prevent the enforcement of W’s claim. There was ample evidence of this prior to my first ruling on 16 December (see above). The picture was subsequently compounded by [Mr Kerman]’s subsequent revelations of the recent steps which H has taken to hide the modern art collection and [Cotor]’s portfolio in [Liechtenstein]. In my judgment, H’s conduct is such that it is plain that legal professional privilege should not attach to his communications with [Mr Kerman] regarding the modern art collection and [Cotor]’s portfolio of financial assets.
21 The ratio and decision in [Barclays Bank Plc and Others v Eustice and Others [1995] 1 WLR 1238] is directly applicable and determinative of this case.”
He then quoted what Schiemann LJ had said in Eustice, 1252:
“the client was seeking to enter into transactions at an undervalue the purpose of which was to prejudice the bank. I regard this purpose as being sufficiently iniquitous for public policy to require that communications between him and his solicitor in relation to the setting up of these transactions be discoverable.”
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There is, in fact, another point, canvassed before Haddon-Cave J though not perhaps with the emphasis it deserved, which, in my judgment, is determinative of the issue in relation to privilege.
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It is clear from the transcript that Mr Dyer’s questioning of Mr Kerman was confined to two factual topics. The first was Mr Kerman’s involvement in the insurance arrangements for the art collection. The second was Mr Kerman’s knowledge of Cotor’s banking arrangements and of the transfer of Cotor’s funds from Switzerland to Liechtenstein. Importantly, Mr Kerman was not asked about his dealings with his clients, his instructions from them, or his communications with them, let alone about any advice he may have given them. Thus, as Mr Dyer put it to Haddon-Cave J in relation to the art collection, “We are not going to go into that sort of detail. Our questions are primarily going to be focused on: “Did you deal with arranging the insurance? Who were the insurance brokers? On the policy, where is the art said to be located, and where is the art now?””
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As Mr Dyer pertinently pointed out to Haddon-Cave J, if these questions, or the questions about the Cotor portfolio, had been put to the husband, he would not have been able to rely on legal advice privilege as a reason for refusing to answer; he would have been ordered to answer. Why then, he said, should Mr Kerman be able to rely on a privilege which would not available to his client – and, one might add, a privilege which, it is elementary, is the privilege of the client, not the solicitor.
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Before us, Mr Malek made precisely the same point: “Mr Kerman was not asked to reveal any legal advice or even instructions which went to the provision of legal advice.” He submitted that, “The documentation and information sought from Mr Kerman relate to communications with third parties. In the context of legal advice privilege (litigation privilege was not asserted), only communications with the client are privileged. Hence there is no conceivable privilege to protect here.”
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To this point, Mr Shepherd had, at the end of the day, no effective answer. Indeed, he had to concede, rightly in my judgment, that communications between a solicitor and a third party are not privileged.
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The point is clearly established by Three Rivers District Council and Others v Governor and Company of the Bank of England (No 5) [2003] EWCA Civ 474, [2003] QB 1556, para 21, Longmore LJ, giving the judgment of the court, said:
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“We, therefore, conclude that the 19th century authorities established that legal advice privilege was a well established category of legal professional privilege, but that such privilege could not be claimed for documents other than those passing between the client and his legal advisers and evidence of the contents of such communications.”
He went on (para 26) to describe legal advice privilege as:
“… a privilege possessed by the client in relation to no other adviser. Lord Brougham was exercised by the difficulty of discovering why the privilege has been refused in respect of other advisers, especially medical advisers. But the law is clear that it is so refused in respect of every profession other than that of the law. In these circumstances it is important that it be confined to its proper limits. The judges of the 19th century thought that it should only apply to communications between client and adviser. That is the proper compass of the privilege. It is not, in our judgment, open to this court to extend the privilege, even if we thought we should.”
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The most recent summary is to be found in Director of the Serious Fraud Office v Eurasian Natural Resources Corpn Ltd [2017] EWHC 1017 (QB), [2017] 1 WLR 4205, paras 65, 69, 75, where Andrews J said this:
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“65 … Communications between clients and third parties, such as professional advisers who are not lawyers, are not subject to legal advice privilege. Interposing a lawyer in the chain of communication will not improve the client’s chances of claiming legal advice privilege.
69 … only communications between solicitor and client for the purpose of seeking and obtaining legal advice, and evidence of the content of such communications [are] subject to legal advice privilege …
75 … legal advice privilege does not extend to documents obtained from third parties to be shown to a solicitor for advice …”
I respectfully agree with that.
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I add that in C v C (Privilege) [2006] EWHC 336 (Fam), [2008] 1 FLR 115, para 33, I said:
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“… the Anstalt is, on the face of it, entitled to claim privilege in the relevant parts of the conveyancing file – that is, those parts of the file being or recording Messrs X’s dealings with the Anstalt (their client) as opposed to those parts being or recording their dealings with Messrs Y (the purchaser’s solicitors) or other third parties.”
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It follows, in my judgment, that this is why the appeal on this point fails.
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In relation to the ‘fraud exception’, Mr Shepherd’s fundamental complaint is that Haddon-Cave J applied the wrong test. He submits that there is a conflict between the decisions of this court in Barclays Bank Plc and Others v Eustice and Others [1995] 1 WLR 1238, where, as we have seen, Schiemann LJ treated the relevant criterion as being “iniquity”, and Gamlen Chemical Co (UK) Ltd v Rochem Ltd and Others (No 2) (1980) 124 Sol Jo 276, Court of Appeal (Civil Division) Transcript No 777 of 1979, where Goff LJ treated the test as being “dishonesty”:
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“… the court must in every case, of course, be satisfied that what is prima facie proved really is dishonest, and not merely disreputable or a failure to maintain good ethical standards …”
Moreover, says Mr Shepherd, Haddon-Cave J did not (Z v Z, para 20) find the husband’s conduct to have been fraudulent or dishonest, nor on his findings of fact (Z v Z, para 19) would he have been entitled to.
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There is no need for us to decide any of these points, and it is better that we do not. I confine myself to two observations.
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The first relates to the decision in Gamlen. It is clear reading the Transcript as a whole that the entire argument proceeded on the assumption that what had to be established was fraud or dishonesty, just as it is clear, having regard to the structure of the judgment, that the crucial passage in Goff LJ’s judgment upon which Mr Shepherd relies was obiter.
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The second observation relates to Eustice. Even if the test is correctly dishonesty and not merely iniquity, it does not follow that the actual decision in Eustice was wrong. In the course of an illuminating discussion, the authors of Thanki (ed), The Law of Privilege, ed 3, para 4.48, fn 116, say this:
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