Documents generated by claims consultants are disclosable in litigation

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What we needed was a lawyer - .PDF file.

‘What we needed was a lawyer.’ These are words of Mr Mackay, the first defendant in the case of Walter Lilly & Co Ltd v (1) Mackay (2) DMW Development Ltd [2012] EWHC 649 (TCC). The judgment in this case reinforces the reality of that statement, as Mr Justice Akenhead in the Technology and Construction Court held that documents generated by claims consultants are not covered by legal professional or legal advice privilege and are therefore disclosable in litigation. For clients to be able to claim privilege over legal advice, the advice must have been given by a practising solicitor or barrister.

The claimant contractor brought a claim against the client (first defendant) and developer (second defendant) in relation to the construction of a substantial house. During the building works the first defendant had engaged the claims consultants, Knowles Ltd, to provide “contractual and adjudication advice”. The claimant contractor applied for disclosure of all correspondence and documents created by the claims consultants. The defendants sought to withhold production of the documents on the basis that they attracted legal advice privilege…

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