The uncertain boundaries of legal professional privilege

Lawyers are not protected by privilege when giving informal advice

Just as every doctor is accustomed to being pestered by friends and family about their various ailments (real or imagined), so lawyers are familiar with their views being sought on everything from planning spats to package holiday disasters. 

The law on when such situations will attract legal professional privilege is surprisingly sparse given the frequency with which they occur.  

The leading authority remains a late eighteenth century case arising out of the bribery of voters in Newark Upon Trent following the 1790 dissolution of Parliament (Wilson v Rastall (1792)). One of the culprits had entrusted incriminating letters to a relation, a Mr B. Handley, who was an attorney and the local under-sheriff, and he had consulted Handley privately about the business.

The King’s Bench ruled that the letters were not privileged and were therefore admissible against the perpetrators. It held that Handley had been consulted because of his professional knowledge rather than in a professional capacity. This is a fine distinction but conveniently it allowed the court to order that the defendant – who the evidence showed clearly to be guilty – to be retried under the Bribery Act.

There has not been much consideration of the distinction in a modern context, although Thanki’s leading text on the law of privilege expresses the view (unsupported by authority) that, “Buttonholing your lawyer neighbour for free advice at a barbeque” is unlikely to attract privilege. A recent case in the High Court (G v G) provides a modern application previously lacking, and approved Thanki’s opinion into the bargain.

A leading QC in matrimonial law practice received a telephone call from a ‘friend of a friend’ about a problem with a divorce settlement. She was asked to recommend a good solicitor for the former wife, and she duly did so. As is often the case in such situations, the silk emailed the solicitor telling him to expect a call and providing a description of the matrimonial problem. The solicitor was later instructed by the former wife to advise on the merits, but no litigation ensued.

Years later the divorce settlement was challenged by the former wife, and delay was put in issue by the former husband. The High Court was faced with applications by the former wife to exclude the evidence and to injunct the opposing legal team from continuing to act on the basis that the solicitors and barristers were all privy to privileged material.

Dismissing the application, the court ruled that the conversation with the QC and the email to the solicitor, even if confidential, were not privileged and therefore they were admissible in evidence. The nub of the reasoning was that the silk had been informally approached to provide a recommendation and not in the contemplation of her being instructed to provide legal advice. In other words, she was approached because of her professional knowledge rather than in a professional capacity: the distinction drawn in Wilson v Rastall given a modern application.

The complexity of issues surrounding legal privilege and confidentiality particularly in the context of approaches made to lawyers should not however be underestimated.  It is an area where the flexibility and informality of modern working practices constantly pose challenges for legal precedents that were forged in quite different conditions and which often are of considerable antiquity. 

Blackstone Chambers’ Andrew Green QC and Tom Hickman and Pinsent Masons partner Michael Pulford acted for the successful husband.