MacRoberts Construction Law Update 14/05/12
LEGAL PROFESSIONAL PRIVILEGE
A recent case in the Technology and Construction Court considered whether documents generated by a claims consultant attracted legal professional privilege or whether they had to be disclosed to the other party in a litigation.
The case is Walter Lilly & Co v Giles Mackay & DMW Developments Limited, March 2012.
Lilly had been employed by DMW to construct a large house in London. There were delays, and claims for extension of time and loss and expense. Mr Mackay, who was to be the owner of the house when constructed, retained Knowles Limited to provide "contractual and adjudication advice".
The project ended up in litigation, in the course of which there was disclosure of documents by the parties. In the course of the disclosure exercise, it became apparent that certain of the documents prepared by Knowles had not been disclosed by Mr Mackay's solicitors.
The solicitors claimed that this was justified because the documents were subject to legal professional privilege and legal advice privilege. Legal professional privilege allows a party to a litigation not to disclose certain documents where these were produced as a result of the lawyer/client relationship. It includes legal advice privilege, which protects advice given by lawyers to clients.
The solicitors claimed that where a person in good faith instructs an organisation or person which they mistakenly believe is a qualified solicitor or barrister. and then receives legal advice from that person, the instructing party is entitled to the privilege protection.
Mr Mackay's principal contact at Knowles provided legal advice and Mr Mackay understood that Knowles were therefore legal advisors.
The judge reviewed previous cases on this issue. The principle he established was that the privileges were confined to qualified members of the legal profession.
He also considered the factual position. Knowles' appointment was for "contractual and adjudication advice" and not for legal advice. Their standard terms allowed for solicitors to be retained separately. The rates quoted did not include for a barrister or a solicitor. On this basis, the judge considered Knowles were not retained as solicitors or barristers, even if the two individuals involved were in fact solicitors or barristers. They were providing claims and project handling advice.
On this basis, legal professional privilege did not apply and the documents had to be disclosed.
The judge mentioned there was a further issue, not yet addressed, of whether advice and other communications from claims consultants in connection with adjudication proceedings were privileged on the basis of the litigation privilege, as opposed to legal professional. Litigation privilege is wider than the legal advice privilege and can cover certain communications between a client and a third party, such as expert witnesses or external consultants, as well as communications between a client and its lawyer. This matter has not yet been decided.
This case primarily relates to the disclosure of documents procedure in England, which differs to the procedure in Scotland for recovery of documents. In Scotland, the equivalent to legal professional privilege would be confidentiality of documents on the basis of the lawyer/client relationship. However, it may be that the principles of this case apply equally in Scotland, and if claim consultants are involved, care will be needed to ensure that documents which parties wish to be privileged are and remain so.
For further information, please contact Shona Frame on 0141 303 1100.
© MacRoberts 2012
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