The privilege due

When a client sues their solicitor they immediately waive any privilege in their communications with their lawyer relating to the litigation. The waiver does not follow merely as a result of the relevance of the documents, it arises out of the unfairness that would result from the client opening up the confidential relationship for examination by the court, while at the same time seeking to enforce the duty of confidence against the solicitor.

However, the waiver does not extend to privileged documents involving other solicitors instructed by the claimant, no matter how relevant they may be. Does this mean that the lawyer’s right to a fair trial is infringed? Or are lawyers in fact in a better position than some other professionals? Strangely enough, there may be an element of truth in both arguments.

No solicitor would regard their ability to rely on their communications with the client to defend a negligence claim as any kind of indulgence. Why, for example, should the solicitor be worse off than any other professional who is sued by a client?However, in some circumstances the solicitor may be in a better position. In Lillicrap v Nalder (1993) the Court of Appeal held that the solicitors were entitled to rely not only on documents from the retainer in which they were alleged to have been negligent, but also on documents from previous retainers that went to other issues. The solicitors wanted to show from those previous retainers that the client would have proceeded even if advised of the risk. No one else, even a different solicitor, would have been entitled to compel disclosure of those documents. The solicitor is perhaps therefore at an advantage.

There is no obvious reason why this should be the case. It is clear from other Court of Appeal authorities that the implied waiver does not extend to relevant documents from retainers of other solicitors. For example, a claimant who instructs new solicitors to advise on mitigation will not waive privilege in their communications with them. The documents may be no less relevant to the issue of mitigation than the documents in Lillicrap were to reliance. However, the fact that the solicitors are different is apparently decisive.

Of course, the easy answer to the extended waiver in Lillicrap is that the documents had lost confidentiality as between the client and the solicitor and that without confidentiality it was not possible to maintain privilege. However, this is not the basis on which the Court of Appeal authorities were decided. Equally, it does not diminish the sense in which the solicitor is at an advantage because they acted for the client on previous occasions.

It is unattractive for a client to seek to withhold relevant information from the court, but the courts have been careful to avoid drawing adverse inferences from a client’s failure to waive privilege. There are public policy grounds for this. If you promote a regime to allow litigants to “unburden themselves without reserve to their legal advisers”, as Lord Justice Bingham said in Ventouris v Mountain (1991), then it makes no sense to penalise them when they avail themselves of that right. You either believe in it or you do not.

So, although intuitively it is difficult to have any sympathy for Lillicrap, we should recognise that it was only through having remained loyal to a single firm of solicitors that he lost a substantive right of privilege against the firm.

So much for lawyers being in a better position than others. So is there also an extent to which the client’s reliance on privilege puts the solicitor at risk of an unfair trial? The answer is probably yes, but no more than anyone else. The harshest example of the absolute nature of legal professional privilege is the Court of Appeal decision in R v Derby Magistrates Court Ex p B (1996).

A defendant in a murder trial sought to adduce evidence of his stepson’s instructions to his solicitors 20 years earlier. The stepson had initially admitted to the murder, but then changed his plea. The House of Lords rejected the suggestion that there was a balancing exercise to be done between the stepson’s right to claim privilege and the defendant’s right to have all the relevant evidence before the court. The stepson’s privilege was an absolute right.

Since Derby Magistrates the Human Rights Act 1998 has been enacted. The cases decided under Articles 6 and 8 of the European Convention on Human Rights do not attribute that same absolute quality to the protection afforded to confidential communications between solicitor and client. However, there is not much sign that the English courts will be prepared to yield. Lord Hobhouse in Medcalf v Mardell (2002) suggested that a balancing exercise may be necessary in some circumstances, but other than that the Derby Magistrates principle has been preferred, most recently by Lord Scott in Three Rivers District Council v Bank of England (2004).

So where does all this leave a defendant lawyer? For the time being a client’s privilege remains an absolute right. There is no ability to compel disclosure of privileged material, however relevant, unless confidentiality has been lost, at least between the claimant and the defendant. There are ways of mitigating the position. In many cases it will still be possible to obtain disclosure of sufficient documents to advance a particular defence.

For example, where the claimant has instructed new solicitors to mitigate its loss it should still be possible to obtain disclosure of the communications passing between the new solicitors and the third-party defendant together with the court documents. A view can then be taken as to whether the claimant acted reasonably in mitigating their loss. If the claimant wishes to justify a particular step or action by showing that they relied on legal advice, then they will have the choice of waiving privilege.

In other instances it may be possible to persuade a claimant to waive privilege by suggesting that the obvious inference from their failure to do so is that the information is adverse to their case. As suggested above, there are public policy reasons why courts might be unwilling to draw such inferences. However, the reality is that they do draw such inferences on occasion (see Fulham Leisure Holdings v Nicholson Graham & Jones (2006)). Even where the court does not make any express adverse inference, the reluctance of a nondisclosing claimant can often create an adverse and damaging impression.

Overall, the current law on privilege affecting defendant lawyers is not hugely disadvantageous. The absolute nature of the client’s privilege is mitigated by implied waiver and there are other ways of mitigating the effects of the limits of the implied waiver. However, at some point in the future there is bound to be an extreme set of facts where the implied waiver does not operate on the privilege in question and where the court is asked to perform the balancing exercise that was rejected in Derby Magistrates. If that day does come then it may herald a departure from 400 years of settled law on the issue.
Nick Bird is a partner and Anna Jenkins an assistant at Reynolds Porter Chamberlain + continued