DON’T DISCLOSE COUNSEL’S ADVICE TO THE OTHER SIDE: A REPEAT IN RELATION TO AN ISSUE THAT IS STILL HAPPENING

An issue I have seen periodically came up on LinkedIn yesterday.  A defendant was complaining that there was a lack of co-operation by the claimant’s solicitor in failing to show them counsel’s Advice in relation to a claim brought by children.  The defendant’s belief that they are entitled to this is sometimes (still) compounded by a view of some claimant solicitors that an advice obtained for the purpose of approval of a civil action for a protected party has to be shown to the other side.  This is not the law.  There may be some fairly fundamental breaches of privilege going on.

WHAT THE RULES SAY

Practice Direction 21 deals with children and protected parties.  It requires that a copy of the Advice be supplied to the court.

5.2

(1) An opinion on the merits of the settlement or compromise given by counsel or solicitor acting for the child or protected party must, except in very clear cases, be obtained.

(2) A copy of the opinion and, unless the instructions on which it was given are sufficiently set out in it, a copy of the instructions, must be supplied to the court.

THE APPLICATION

The application itself, clearly must be disclosed to the other side.  This is dealt with in paragraph 5.1 of the Practice Direction. Note that there is no obligation in this rule to disclose the advice obtained for the purpose of approval.

(1) subject to paragraph 5.3, the terms of the settlement or compromise or have attached to it a draft consent order in Practice Form N292;

(2) details of whether and to what extent the defendant admits liability;

(3) the age and occupation (if any) of the child or protected party;

(4) the litigation friend’s approval of the proposed settlement or compromise,

(5) a copy of any financial advice relating to the proposed settlement; and

(6) in a personal injury case arising from an accident –

(a) details of the circumstances of the accident,

(b) medical and quantum reports and joint statements material to the opinion required by paragraph 5.2,

(c) where appropriate, a schedule of any past and future expenses and losses claimed and any other relevant information relating to the personal injury as set out in Practice Direction 16 (statements of case), and

(d) where considerations of liability are raised –

(i) any evidence or reports in any criminal proceedings or in an inquest, and

(ii) details of any prosecution brought.

EARLIER POSTS ON THIS TOPIC

I wrote about this in 2016. 

“Note there is nothing that requires the disclosure of the advice to the defendant. There is certainly nothing that overrides the law of privilege.

I cannot find a single document or text where the disclosing of legal advice to the defendant in these circumstances is advocated or condoned.

DOES IT MATTER?

• A lawyer doing this has divulged privileged material without proper authority and for no good reason.
• A defendant can always change its mind up until the court approval hearing. If the Advice reads “this is far more than you will get at court” or highlights the litigation risk the defendant can withdraw the offer.
• In Drinkall -v- Whitwood [2003] EWCA Civ 1547 the defendant accepted an offer of settlement in relation to liability. They withdrew from that offer shortly before the claimant’s 18th birthday. The Court of Appeal held that the settlement was only a proposed settlement until approved by the court.

SO DON’T DO IT

It is not required by the rules (“court” does not mean defendant). It involves a fairly profound breach of privilege.”