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England and Wales High Court (Family Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> S County Council v B [1999] EWHC Fam 1 (29 July 1999) URL: http://www.bailii.org/ew/cases/EWHC/Fam/1999/1.html Cite as: [2000] 3 WLR 53, [2000] Fam Law 462, [2000] 1 FCR 536, [2000] Fam 76, [2000] 2 FLR 161, [1999] EWHC Fam 1 |
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FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
| S COUNTY COUNCIL v B |
____________________
Robin Rowland (instructed by Goodger Auden) for the father
Michael Keehan(instructed by Grindeys) for the guardian ad litem
Guy Spollen (instructed by Local authority solicitor) for the local authority
____________________
Crown Copyright ©
Background
The disclosure issues and the positions of the parties and the Crown Prosecution Service
These raise questions relating to legal professional privilege and the need to consider two recent cases in the House of Lords namely R v Derby Magistrates' Court ex parte B; Same v Same ex parte Same [1996] AC 487, sub nom R v Derby Magistrates' Court ex parte B [1996] 1 FLR 513 and Re L (A Minor) (Police Investigation: Privilege) [1997] AC 16, sub nom Re L (Police Investigation: Privilege) [1996] 1 FLR 731.
Both sides, in my judgment correctly, accepted that the private interests of the father in maintaining confidentiality would not enable him to resist the disclosure that is sought (see, for example, Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No 2) [1974] AC 405 and Science Research Council v Nassé; Leyland Cars (BL Cars Ltd) v Vyas [1980] AC 1028).
(a) the Crown Prosecution Service has limited its access, or possible access, to reports prepared on the instructions of the father for the purposes of these proceedings,
(b) the Crown Prosecution Service has helpfully adopted the stance that it will not seek or initiate what could be described as disclosure 'through the back door' by seeking the identity of the experts instructed in the criminal proceedings or their reports, and
(c) it is not practical to keep the reports (and the material upon which they are based including communications with the experts relating to them) from the experts involved in both trials, and the prosecution may become aware of the contents of the reports (and such material) as a result of them being filed or disclosed in these proceedings and conclude that they should invite the Crown Court Judge to deal with issues that may then arise as to their use.
A further practical problem is that the mother is likely to be a witness in the criminal trial and as a party to these proceedings will
have seen all medical reports and material relating to them which the father files or is ordered to disclose.
The reasons why the disclosure is sought
(i) it is unlikely that the father (or any other party to these care proceedings) would be permitted to instruct and call such additional experts for the purposes of these care proceedings, and
(ii) the father is proposing to instruct them so that if he wants to he can claim legal professional privilege in respect of the discussions that he and his solicitors have with them and their reports, with the consequence that he does not have to disclose these discussions or their reports in these care proceedings or elsewhere, and can rely on them solely in the preparation of his defence and in assisting his counsel to cross-examine at the criminal trial. Such a course is not unusual in criminal proceedings.
(i) in proceedings that concern the welfare of children in accordance with, and as recognised by, the duty of disclosure on the parties in such proceedings, it is important that the court has all relevant material,
(ii) the discussions with, and the reports of, the experts the father instructs in the criminal proceedings may include a more detailed account of relevant events concerning the injuries suffered by N and the care of the children generally, and
(iii) the discussions with, and the reports of, those experts may include
inconsistent accounts of relevant events concerning the injuries suffered by N and the care of the children generally.
The solicitors instructed by the father
Legal professional privilege and the Derby Magistrates case
(1) Legal professional privilege is often classified under two sub-headings, namely: legal advice privilege and litigation privilege.
(2) In that classification, legal advice privilege is a term used to describe material that is privileged whether or not litigation is in existence or pending. Originally it was confined to advice or communication between solicitor and client concerning litigation, but from an early stage it was extended to cover non-litigious business (see the Derby Magistrates case [1996] 1 AC 487, 505B-E, [1996] 1 FLR 513, 524G-525B. As that citation shows, it was pointed out that it was not easy to discover why a like privilege has been refused to others and I would add that in the modern age it is not easy to see why the logic, purpose and public interest underlying the privilege when litigation is not contemplated supports the privilege in respect of communications with a lawyer but not, for example, communications with an accountant on the same subject matter.
(3) In that classification, litigation privilege covers two areas, namely: (a) communications between a solicitor (or a lawyer) and third parties which come into existence after litigation is contemplated, or commenced, and made with a view either to obtaining or giving advice in relation to it, or of obtaining or collecting evidence to be used in it, or obtaining information which may lead to the obtaining of such evidence (see Anderson v Bank of British Columbia (1876) 2 Ch D 644, 650, and (b) communications between the client (or a non-lawyer) and third parties, the dominant purpose of which is to obtain legal advice, or to conduct or aid in the conduct of litigation in reasonable prospect (see, for example, Waugh v British Railways Board [1980] AC 521).
(1) The question whether a communication and thus a document recording it is subject to legal professional privilege falls to be determined at the time of the communication. This is because the question is determined by reference to the purpose of the communication.
(2) A general rule is 'once privileged always privileged' (see Calcraft v Guest [1898] 1 QB 759, 761 cited with approval in the Derby Magistrates case at 506H and 526 respectively).
(3) Both aspects of litigation privilege are now well established (see Waugh v British Railways Board [1980] AC 521, in particular headnote 521D-E and 512H-522B, 529H-532B, 533B-D, 534E-H, 536A-D, 537G-538A, 539G-540A, 541G-545A and 545F-G; Re Highgrade Traders [1984] BCLC 151, where the headnote correctly summaries the decision and see in particular 152b/e, 154e, 155d-159d (the facts), 161g-162c, 164a/b, 165i-166d, 168c, 169h-175d; Guinness Peat Properties Ltd and Another v Fitzroy Robinson Partnership [1987] 1 WLR 1027 - see in particular headnote and 1033H-1039B where (inter alia) at 1034A-H Slade LJ cites with approval the test of dominant purpose to obtain legal advice or to conduct or aid in the conduct of litigation that is pending or in reasonable contemplation set out in Grant v Downs (1976) 135 CLR 674, 677 which, as Slade LJ points out, was approved by the House of Lords in the Waugh case; and Ventouris v Mountain [1991] 1 WLR 607, in particular headnote at
607G/H, 611A-612E, 613H-614A, 615A-F, 618A-D, 618H-619C).
(4) The cases cited in para (3) were considered by the Vice-Chancellor in Secretary of State for Trade and Industry v Baker and Others [1998] 2 WLR 667, where he decided that the reports in question were not covered by legal professional privilege because although the dominant purpose test had become established in English case-law (see 676F) the relevant authorities did not involve a statutory report and the issue of privilege therefore fell to be decided on whether there was a public interest which founded such privilege (see 681C and 682A). In considering that issue at 684C the Vice-Chancellor applied a test whether disclosure of the reports 'might tend to disclose the nature of legal advice the Secretary of State was seeking or was receiving'. In my judgment, and indeed as the Vice-Chancellor recognised at 679F, 680C-E and 681A this is not the only public interest, purpose and logic which underlies litigation privilege. That public interest, purpose and logic is not restricted to protecting the nature of the legal advice a litigant (or potential litigant) is seeking or receiving, and as Bingham LJ makes clear in Ventouris v Mountain [1991] 1 WLR 607:
(a) litigation privilege can be claimed by a litigant in person (see 611A and this was also envisaged as a possibility in Anderson v Bank of British Columbia (1876) 2 Ch D 644, at 648), and
(b) litigation privilege is not confined to communications between a client and his solicitor relating to advice or instructions (see 611F). In taking this approach by reference to the need to protect legal advice from disclosure and thus one related to the participation of a solicitor, it seems that the Vice-Chancellor is returning to his analysis at 675H-676B by reference to the authorities he has referred to earlier in his judgment. There he also refers to the need to protect instructions given to a solicitor. It seems to me that this is too narrow an explanation or expression of the reasoning contained in the earlier cases. I am of this opinion notwithstanding the overlap of this explanation with the explanation given by Bingham LJ in Ventouris v Mountain [1991] 1 WLR 607, 611C-E that Anderson v Bank of British Columbia (1876) 2 Ch D 644 shows that it is the protection of confidential information between client and legal adviser that lies at the heart of legal professional privilege (see the Vice-Chancellor's citation at 678E) because in my opinion it does not take into account:
(i) the wider and disjunctive reasoning in Anderson v Bank of British Columbia (1876) 2 Ch D 644, 648, part of which is cited at 674E-H and refers to obtaining evidence from third parties which as Bingham LJ points out in Ventouris v Mountain at 611F and 612D is covered by the privilege (see also his citation at 612H from the judgment of James LJ) albeit, as he says, perhaps as a result of a generous interpretation of the rights of a litigant or potential litigant to seek and obtain legal advice on his prospects and the conduct of litigation,
(ii) the possibility referred to in Anderson v Bank of British Columbia that litigation privilege might be claimed by a litigant in person, or
(iii) the disjunctive approach of Cotton LJ (cited at 675F-G) with its
alternative reference to obtaining evidence.
Further, and in any event, as I have pointed out the Vice-Chancellor seems to accept that this explanation of the reasons that underlie litigation privilege is narrower than that contained in authorities that are binding on him.
(5) In making the points contained in para (4) I accept that the extent of the privilege has been extended since the cases at the end of the last century, and that in particular this development relates to the establishment of the dominant purpose test. This is shown by Bingham LJ's discussion of Anderson v Bank of British Columbia at 612E-613B in Ventouris v Mountain where he makes the point that the letter that was held not to be privileged in that case would now be covered by the privilege. Further, I make these points because in my judgment (i) the extent of the privilege and the reasoning that underlay it at the end of the last century, and (ii) the more recent extension of the privilege to cover, for example, the letter written by the bank's London manager in Anderson v Bank of British Columbia, and material that satisfies the dominant purpose test identified and accepted by the House of Lords in Waugh v British Railways Board, are relevant to the argument advanced in this case that different principles apply in respect of the disclosure of material covered by litigation privilege and material that is privileged because it comprises communications between a lawyer and his client.
(6) It is also of note that in the Barings case it was not argued that, and the Vice-Chancellor did not reach his conclusion on the basis that, litigation privilege did not give the client an absolute right. Indeed, the underlying assumption in the case and of the judgment was that litigation privilege did give the litigant an absolute right. This was notwithstanding the point that the Barings case was concerned with a report for which privilege was claimed on the basis of the 'dominant purpose test' and it could be said that if after the Derby Magistrates case a balancing act such as that undertaken in respect of material covered by public interest immunity could be carried out in respect of material covered by legal professional privilege, such reports were the most likely candidates.
(7) In the Derby Magistrates case at [1996] 1 AC 487, 510B, [1996] 1 FLR 513, 529F-G by adding an express reference to Bingham LJ's statement of the principle underlying legal professional privilege in Ventouris v Mountain [1991] 1 WLR 607, 611, Lord Lloyd is approving that statement.
(8) As is made clear by the House of Lords in Waugh v British Railways Board (see, for example, Lord Wilberforce at 531H-532B and Lord Edmund-Davies at 543C-D), and throughout the authorities relating to the establishment of legal professional privilege, there is a strong public interest that all material relating to the matters in issue in litigation should be disclosed. This is reflected by the approach taken by Bingham LJ at 611H-619E in Ventouris v Mountain based purely on principle.
(9) In my judgment, it follows from point (8) that in the establishment and development of legal professional privilege:
(a) it has been accepted that the privilege detracts (or can be said to detract) from the fairness of the trial by denying a party access to
material relating to issues in it,
(b) it has been accepted that the privilege which enables such material to be lawfully withheld should be confined within narrow limits;
(c) the courts have been concerned with identifying how the overall public interest in doing justice is best served, and as Lord Taylor says in the Derby Magistrates case ([1996] 1 AC 487, 507D, [1996] 1 FLR 513, 527B), the identification of a condition on which the administration of justice as a whole rests;
(d) the public interest and reasons underlying the various heads of legal professional privilege, and in particular legal professional privilege arising when litigation is in being, or is contemplated, are the same or are essentially the same because they are based on a development of the earlier establishment of the privilege and the justification for it, and
(e) when litigation privilege has been held to exist, it has been held that the individual has the benefit of legal professional privilege and thus the rights flowing therefrom and not some other, or lesser, privilege or rights and I respectfully agree with Lord Nicholls when he says in his dissenting speech in Re L (A Minor) (Police Investigation: Privilege) [1997] AC 16, 33E, sub nom Re L (Police Investigation: Privilege) [1996] 1 FLR 731, 744H that the two subheadings (namely legal advice privilege and litigation privilege) are integral parts of a single privilege.
(10) I would add that:
(a) if there has been a development in more recent years of legal professional privilege it is in respect of the 'dominant purpose test' and as to this it is to be noted that Waugh v British Railways Board [1980] AC 521 overruled earlier authority which supported the view that privilege attached if one of the purposes for which a document was prepared was for its use by a solicitor when litigation was anticipated;
(b) the existence of litigation privilege in respect of the gathering of material and evidence by a solicitor (or after a solicitor has been instructed) for the purposes of litigation has been established for a long time;
(c) in considering whether material is covered by legal professional privilege and in particular litigation privilege in a new area, or one not directly covered by earlier authority, it is important to ask (as the Vice-Chancellor did in the Barings case) whether the public interest and underlying justification for legal professional privilege applies and not whether the material can fairly be described as being in the same class as material to which legal professional privilege has been held to apply before in similar circumstances. This point has been recognised in relation to claims for public interest immunity and it seems to me that it is important to remember it when considering whether (i) litigation privilege arises in respect of proceedings under the Children Act 1989 which are essentially non-adversarial, and (ii) the different question whether legal professional privilege (including litigation privilege) which has arisen outside such proceedings can be
claimed in them, and
(d) it is not for me in this case to re-examine the validity of the arguments relating to public interest and candour (see, for example, Lord Wilberforce in Waugh v British Railways Board [1980] AC 521, 531C-532B) that support litigation privilege, and legal professional privilege generally.
I turn now to R v Derby Magistrates' Court ex parte B; Same v Same ex parte Same [1996] AC 487, sub nom R v Derby Magistrates' Court ex parte B [1996] 1 FLR 513. It was concerned with instructions given by the applicant to his solicitor before he changed his account of how a girl was killed. The request for disclosure expressly excluded advice given by solicitors and/or counsel (see, for example, 496E and 516B respectively).
In the Derby Magistrates case the House of Lords held that (with the possible qualification that the position might be different if the litigant no longer had any interest in continuing to assert the privilege, and I mention that in my judgment it was correctly common ground that this possible qualification did not apply in this case) no exception should be allowed to the absolute nature of legal professional privilege, once established, and that therefore R v Barton [1973] 1 WLR 115 and R v Ataou [1988] QB 798 should be overruled (see Lord Taylor at [1996] 1 AC 487, 508H-509B and 508D-E, [1996] 1 FLR 513, 528E-G and 528B, Lord Lloyd at [1996] 1 AC 487, 509D and 510A, [1996] 1 FLR 513, 528H and 529D-E, and Lord Nicholls at [1996] 1 AC 487, 510D-H and 512D, [1996] 1 FLR 513, 529H-
530D and 531H-532A).
(a) In considering the authorities, Lord Taylor (probably inevitably) refers to authorities that are relevant to the establishment of litigation privilege and in particular to Anderson v British Bank of Columbia (1876) 2 Ch D 644, which as appears earlier in this judgment is cited, relied on and applied in the authorities I have referred to earlier relating to litigation privilege.
(b) As in for example Waugh v British Railways Board, all three speeches in the Derby Magistrates case refer to the competing interests within the overall public interest and the aim of promoting the administration of justice (see Lord Taylor at 508D-E and 528B respectively, Lord Lloyd at 509D and 528H respectively and Lord Nicholls at 510D-H and 529H-530D respectively).
(c) At 503G-H and 523D-E respectively, before examining the authorities Lord Taylor describes in general terms what he calls a long-established rule and an absolute right of a client not to waive his privilege and also at 509A and 528F respectively expresses his conclusion by reference to legal professional privilege in general terms.
(d) The principle which Lord Taylor identifies at 507D and 527A respectively as running through the cases is the principle recognised by, for example, Bingham LJ in Ventouris v Mountain which also underlies the existence of litigation privilege in respect of, for example, proofs of evidence from witnesses of fact and experts and material that satisfies the dominant purpose test.
(e) In the context of the preparation for adversarial litigation, it is difficult to make a distinction in respect of the principle underlying legal professional privilege between (i) communications between a solicitor and his client, and (ii) communications between on the one hand the solicitor and/or his client and on the other a witness or potential witness.
Re L [1997] AC 16, [1996] 1 FLR 731
(a) The report was what is sometimes called a 'paper report' in that the expert instructed by the mother did not interview the mother, or receive information from her solicitors. The report was prepared entirely on the basis of the hospital case notes that had already been filed (see, for example, [1997] AC 16, 16D-E, 22G and 27A, [1996] 1 FLR 731, 731D-E, 734D and 738G).
(b) The reason the prosecuting authorities wanted to see the report was therefore not the same as the reason the applicant wanted to see the material sought in the Derby Magistrates case, or the reason (or main reason) that the guardian ad litem in this case wants to see the reports of the experts instructed in the criminal proceedings by the father.
(c) The House of Lords was not concerned with the aspect of litigation privilege that covers communications between (i) a client and his solicitor that are, or may be, passed on to an expert, (ii) a solicitor and a witness (whether an expert or a witness of fact), or (iii) a client and a potential witness to obtain a witness statement or a report when
the 'dominant purpose' test is satisfied.
(d) It was argued by the respondents to the appeal that legal professional privilege is not a single exclusionary principle with uniform effect and consequences in all situations and that a distinction was to be drawn between (i) legal professional privilege covering communications between a lawyer and his client, and (ii) litigation privilege affecting expert reports commissioned in anticipation of, or in the course of, legal proceedings. In advancing this argument the citation in Ventouris v Mountain [1991] 1 WLR 607, 618 from Buttes Gas and Oil Co and Another v Hammer and Another [1981] QB 223, 243-244 was relied on. In addition, it was argued that such litigation privilege is a product of the adversarial system and reliance was placed on W v Egdell [1990] Ch 359.
(e) This argument (as reported) (i) does not take into account communications by, or through, lawyers with witnesses of fact or experts, or the possibility that communications between a lawyer and his client might be passed on to experts when their reports are commissioned, but (ii) does recognise that the documents upon which such experts base their reports may be said to be privileged (and reference was made to Harmony Shipping Co SA v Saudi Europe Line Ltd; Same v Orri (Trading as Saudi Europe Line); Same v Davis and Another [1979] l WLR 1380, 1385-1386).
(f) Part of this argument was therefore that litigation privilege in respect of experts' reports was based on the adversarial system and went on to identify that proceedings under the Children Act 1989 have an investigative and non-adversarial quality which it was said required that all relevant material relating to the child should be before the court.
(g) Lord Jauncey (and thus the majority) expressly declined to reach a decision on any 'free-standing' argument based on the duty of disclosure in Children Act proceedings (see 28C-H and 739G-740E respectively).
(h) Lord Jauncey (and thus the majority) found that the mother had waived her privilege against self-incrimination (see 28H-29D and 740F-741B respectively).
(i) Importantly, this case was not concerned with the disclosure of material covered by litigation privilege which had arisen in other, and thus non-Children Act proceedings.
(j) Lastly, and also importantly, in Re L the majority make a distinction between privilege attaching to communications between solicitor and client and that attaching to reports. Therefore, as in the Derby Magistrates case, they identify a type of material that is subject to legal professional privilege on the basis that it records communications between a solicitor and his client. In doing so, in my judgment they exclude such communications and privilege from their references to litigation privilege. Further, in making the distinction at 25A and 736F respectively the majority through Lord Jauncey make it clear that the privilege they are referring to which attaches to communications between a solicitor and his client attaches whether litigation is pending or not, and at 27H and 739E respectively they make it clear their conclusion does not affect
privilege arising between solicitor and client.
(A) Does Re L decide that:
(i) generally material covered by litigation privilege, or
(ii) some or all experts' reports covered by litigation privilege, arising in, or in connection with, other litigation
cannot be claimed in proceedings under the Children Act where the welfare of children is paramount?
(B) Does Re L decide that either:
(i) generally, or
(ii) in proceedings under the Children Act 1989,
litigation privilege generally, or litigation privilege in respect of some or all experts' reports, does not confer an absolute right but only a qualified right on the person having the benefit of the privilege?
In my judgment, the majority in Re L do not decide that either of the above is the case.
'In proceedings under Part IV of the Children Act where the welfare of children is paramount and thus the proceedings are essentially non-adversarial legal professional privilege does not arise in respect of the reports of an expert based on the papers disclosed in the proceedings and which the court has given leave to a party to disclose to that expert.'
In my judgment, this reasoning extends to, for example, wardship proceedings and private law proceedings under the Children Act on the basis that they can also be described as essentially non-adversarial (see also Vernon v Bosley (No 2) [1999] QB 18, 35H-36A, [1998] 1 FLR 304, 318H).
(i) 'This raises the question of whether proceedings under Part IV of the Act are essentially adversarial in their nature. If they are, litigation privilege must continue to play its normal part. If they are not, different considerations may apply' (25H and 737E respectively).
(ii) 'I agree with Sir Stephen Brown P that care proceedings are essentially non-adversarial. Having reached that conclusion, and also that
litigation privilege is essentially a creature of adversarial proceedings, it follows that the matter is at large for this House to determine what if any role it has to play in care proceedings' (26H and 738F respectively).
(iii) 'His report appears to have been based entirely on the hospital case notes and there is no suggestion that he had any communication with the mother. Accordingly, all the material to which he had access was material which was already available to the other parties ? In these circumstances I consider that care proceedings under Part IV of the Act are so far removed from normal actions that litigation privilege has no place in relation to reports obtained by a party thereto which could not have been prepared without the leave of the court to disclose documents already filed or to examine the child' (27A-E and 738G-739B respectively).
(iv) 'The better view is that litigation privilege never arose in the first place rather than that the court has power to override it. It is excluded by necessary implication from the terms and overall purpose of the Act. This does not of course affect privilege arising between solicitor and client' (27H and 739E respectively).
In highlighting these passages, I naturally recognise that they have to be read in context and in particular that p 27 of the report has to be read as a whole. However, in my judgment these passages do identify the essential reasoning of the majority and that it is based on the conclusion that the proceedings are essentially non-adversarial (see also Vernon v Bosley (No 2) [1999] QB 18, 61G-H, [1998] 1 FLR 304, 344A-B where Thorpe LJ identifies the essential foundation of the decision in Re L as being that Children Act proceedings 'are not purely adversarial but quasi-inquisitorial').
(i) an expert's report based in whole, or in part, on communication between the expert and the party's lawyer or the party, and
(ii) the gathering of evidence by a party's lawyer, or a party, for use in proceedings under the Children Act 1989 when the welfare of the child is paramount.
The minority in Re L through the speech of Lord Nicholls at 35B-D and 746E-G respectively point out by reference to the judgment of Steyn LJ (as he then was, and who is a member of the majority in Re L) in Oxfordshire County Council v M and Another [1994] Fam 151, [1994] 1 FLR 175, where he took the view which in my judgment is the one taken by the majority in Re L, namely that the Children Act 1989 has impliedly abrogated litigation privilege in care proceedings at least so far as (some or all) experts' reports are concerned that:
(a) there are difficulties in making distinctions between experts, who are potential witnesses of expert opinion and other potential witnesses, and
(b) logically there is no stopping place short of the abrogation of all litigation privilege (and thus the wider class of communications referred to by Lord Nicholls at 33D), and I would add that if the majority had not made it plain that they were of the view that their conclusion does not affect privilege arising between solicitor and client (see [1997] AC 16, 23H-25A and 27H, [1996] 1 FLR 731, 735F-736F and 739E) their reasoning based on the non-adversarial nature of the proceedings could support an argument that the existence or extent of the privilege attaching to such communications relating to Children Act proceedings and proceedings where the welfare of the child is the paramount concern of the court should be re-examined.
(i) a conclusion that litigation privilege arising in connection with other litigation cannot be claimed in proceedings under the Children Act 1989, or
(ii) a conclusion that in proceedings under the Children Act 1989, or generally, litigation privilege (when it exists) does not give the person entitled to claim it an absolute right.
These are the points that are relevant in this case.
(a) Re L, as I understand it, preserves legal professional privilege in respect of communications between solicitor and client and therefore, for example, draft statements and discussions as to the relevant facts between solicitor and client for the purposes of proceedings under the Children Act 1989;
(b) if that is right, it is not obvious why legal professional privilege should not attach to draft witness statements from potential witnesses of fact (eg those who saw a particular incident) and the communications and discussions between them and a party's lawyer concerning the evidence they could give and the preparation of their statement, and in any event, it is likely that it would be difficult in some cases to draw the line between disclosure of the client's instructions and discussions with a potential witness;
(c) as to point (b), it is at least arguable that generally such evidence is likely to be more relevant to the establishment of the threshold criteria in care cases, and disputes as to the behaviour of the adult parties in private law proceedings, which are the parts of proceedings under the Children Act 1989 which can in my judgment at least arguably be said to have many of the ingredients and characteristics of adversarial litigation;
(d) it could be argued that a distinction between the evidence of experts, and other witnesses of fact is as Thorpe LJ says in Vernon v Bosley
(No 2) [1999] QB 18, 58D, [1998] 1 FLR 304, 340F that in Children Act proceedings the duty of an expert is to write every report as if his instructions came from the guardian ad litem and this reflects the non-adversarial element of proceedings under the Children Act 1989. Further, it seems to me that in practice it would be easier and more practical for a lawyer for a party, or for a party himself, to proceed on the basis that all communications with an expert should be treated as if they were through the guardian ad litem or the court welfare officer, and thus that they do not attract any privilege and should be disclosed, and
(e) such an approach to instructing experts and their reports would focus on the non-adversarial aspect of proceedings under the Children Act 1989 and would not depend on the question whether or not the party had had to seek the leave of the court to provide material to the expert, rather than leave to call the expert. In my view that has advantages because in some cases such leave may not be necessary and it treats the rules relating to leave, which it seems to me must be designed to preserve confidentiality, as a part of the essentially non-adversarial aspect of proceedings under the Children Act 1989.
'It is clear from the reasoning of the Lord Chief Justice and of the other members of the committee that the reference to legal professional privilege was in the context of the relationship between solicitor and client. Indeed, there was no occasion to consider whether and in what other circumstances absolute legal professional privilege might apply. Notwithstanding this, Miss Kushner maintained that the absolute nature of the privilege attaching to the solicitor-client relationship extended equally to all other forms of legal professional privilege.
My Lords, I reject this contention. There is, as Mr Harris for the city council and the police authority, pointed out, a clear distinction between the privilege attaching to communications between solicitor and client and that attaching to reports by third parties prepared on the instructions of a client for the purposes of litigation. In the former case the privilege attaches to all communications whether related to litigation or not, but in the latter case it attaches only to documents or other written communications prepared with a view to litigation: Waugh v British Railways Board [1980] AC 521, 533B, 537G and 544B. There is this further distinction that whereas a solicitor could not without his client's consent be compelled to express an opinion on the factual or legal merits of the case, a third party who has provided a report to a client can be subpoenaed to give evidence by the other side and cannot decline to answer questions as to his factual findings and opinion thereon. There is no property in the opinion of an expert witness: Harmony Shipping Co SA v Saudi Europe Line Ltd; Same v Orri (Trading as Saudi Europe Line);
Same v Davis and Another [1979] l WLR 1380, 1386G, per Lord Denning MR.'
(i) it is part of the passage which leads to the posing of the vital question at 25H and 737E respectively, namely: 'This raises the question of whether proceedings under Part IV of the Act are essentially adversarial';
(ii) it is at odds with the next two sentences at 25H and 737E respectively, namely: 'If they are, litigation privilege must continue to play its normal part. If they are not different considerations may apply', and
(iii) it is thus not part of the essential reasoning that it is the nature of care proceedings (ie that they are essentially non-adversarial) that means that the role litigation privilege has to play in care proceedings is at large for the House in Re L (26H and 738F respectively) and the conclusion that the court in care proceedings does not override litigation privilege but that it never arose in the first place (27G-H and 739D-E).
(a) in my judgment the majority in Re L are concerned with, and are only dealing with, the establishment and thus the existence of litigation privilege in care proceedings and if they had been dealing with material that was the subject of litigation privilege by reference to other proceedings (i) they would have done so expressly, and (ii) in particular they would have explained how the Children Act 1989 and the essentially non-adversarial nature of proceedings under it could affect rights established elsewhere. It is one thing to conclude that the Children Act 1989 and the nature of proceedings under it has the result that a privilege does not arise in such proceedings and quite another to say that they remove, or affect, rights based on the public interest and which come into existence in, or in respect of, other proceedings, and
(b) if the majority were considering the issue whether litigation privilege
in contrast to solicitor and client privilege gives rise to a qualified rather than an absolute right, again they would have done so expressly and the sentences at 25H and 737E respectively (quoted in para (ii) above) indicate that they were not considering this question.
(a) the passage makes no reference to the aspect of litigation privilege concerned with communications between lawyers and third parties, and indeed it expressly refers to reports of third parties prepared on the instructions of the client;
(b) the cited passages from Waugh v British Railways Board all refer to the establishment of the dominant purpose test and not to the other aspects of litigation privilege, and
(c) the reference to subpoenaing a third party who has provided a report correctly limits what he can be compelled to answer to his factual findings and opinions, and as shown by Harmony Shipping Co SA v Saudi Europe Line Ltd; Same v Orri (Trading as Saudi Europe Line); Same v Davis and Another [1979] 1 WLR 1380, 1385 D-E a third party cannot be compelled to give evidence of matters covered by legal professional privilege (and I return to this point later when dealing with the question whether the father should be ordered to disclose the identity of the experts he instructs solely for the purposes of the criminal proceedings).
In my judgment, for the reasons set out above, the decision in Re L:
(1) is not authority which founds the alternative propositions advanced by counsel for the guardian ad litem in this case, namely either (a) that the father cannot in these proceedings assert legal professional privilege in respect of his communications (direct or indirect) with the medical experts he instructs in connection with the criminal proceedings or in respect of their reports, or (b) that he only has a qualified right to assert that such material should not be disclosed in these proceedings;
(2) does not alter my conclusions based on the Derby Magistrates case and earlier authority that when, and from the time that, it comes into existence litigation privilege in respect of material such as that under consideration in this case confers an absolute right on the litigant or potential litigant. (This conclusion is naturally subject to the qualification raised in the Derby Magistrates case that such a right may cease to exist if the litigant no longer had any interest in continuing to assert the privilege).
The duty of disclosure in cases concerning the welfare of children
(a) It is accepted in the Derby Magistrates case that legal professional privilege can be removed, excluded, overridden or qualified by statute (see [1996] 1 AC 487, 507G-H, [1996] 1 FLR 513, 527D-F). As is shown by the cases relating to the privilege against self-incrimination (see, for example, Re London United Investments plc [1992] Ch 578, 594G-599G and Bishopsgate Investment Management (In Provisional Liquidation) v Maxwell; Cooper v Maxwell; Mirror Group Newspapers plc v Maxwell [1993] Ch 1, 18G-20H, 39C and 56A-G) the removal etc of a right or privilege (i) has to be done by statute, and (ii) can be achieved by express words or necessary implication. If it is not done expressly the implication must be clear because, for example, if the common-law right, or privilege, was not removed etc, the statute would be prevented from achieving its obvious purpose. The duty of disclosure in cases concerning children is not one imposed by statute and it arises in cases concerning children that are not based on statute, as well as those that are. Of itself therefore the duty cannot remove, exclude, override or qualify legal professional privilege and the common-law rights it confers once it has been established.
(b) In cases under the Children Act 1989 it can be said that the duty is
based on the statute, but as I have explained in my judgment the House of Lords in Re L do not decide that the effect of the Children Act 1989 is to override or qualify legal professional privilege. Rather, they decide that legal professional privilege did not arise in respect of the report under consideration in that case.
(c) The House of Lords in Re L recognise and confirm that some material relevant to the welfare of the child who is the subject of proceedings where his welfare is the court's paramount consideration is subject to legal professional privilege and does not have to be volunteered in the proceedings, namely communications between a party and his or her lawyer (see [1997] AC 16, 24H-25A and 27H, [1996] 1 FLR 731, 736E-G and 739E).
(d) Point (c) is subject to the duties of advisers not to mislead but it is a recognition and confirmation that the important public interest in promoting the welfare of children, the statutory duty imposed by s 1 of the Children Act 1989 and what Lord Jauncey describes as the primary object of the Act ([1997] AC 16, 27F, [1996] 1 FLR 731, 739D) do not lead to the conclusion (i) that legal professional privilege does not arise or have a part to play in cases under the Children Act 1989, or (ii) that legal professional privilege andthe public interest on which it is based is always subordinated to the public interest in promoting the welfare of children.
(e) This recognition and confirmation shows (i) that legal professional privilege has a place in proceedings under the Children Act 1989,(ii) that there are public interests that are strong enough to compete with and override the public interest in promoting the welfare of children that underlies the Children Act 1989 and the wardship jurisdiction, and thus proceedings where on all, or some, of the issues that arise the paramount concern of the court is the welfare of a child, and (iii) that the duty of disclosure in cases relating to children under the Children Act 1989 which is based on the nature of those proceedings and the purposes of the Children Act 1989 does not override or qualify legal professional privilege or the rights it confers when it has been established.
(f) In my judgment it should be remembered when issues based on public interest arise in cases concerning children that all issues in respect of such proceedings are not governed by the paramountcy principle, for example (i) the exercise of the power under s 38(6) to order an assessment and thereby obtain further evidence (see Re C (A Minor) (Interim Care Order: Residential Assessment) [1997] AC 489, sub nom Re C (Interim Care Order: Residential Assessment) [1997] 1 FLR 1 and Re M (Residential Assessment Directions) [1998] 2 FLR 371), and (ii) in my view the establishment of the threshold criteria and thus the jurisdiction of the court to go on to the 'welfare or disposal' stage in care proceedings (see Re M (A Minor) (Care Order: Threshold Conditions) [1994] 2 AC 424, [1994] 2 FLR 577 and Southwark London Borough Council v B [1998] 2 FLR 1095). These examples show that in respect of some issues relating to admission of evidence and jurisdiction the paramountcy principle does not apply and therefore does not apply to the issue whether legal professional privilege arises, or can be overridden, when such
issues are considered by the court.
(g) More generally as to point (f) in proceedings relating to children the interests of adults, and in particular their parents, are affected. It follows that there is a need to be fair to them and the fact that in deciding what order should be made in respect of a child the court applies the paramountcy principle does not mean that in determining how the proceedings should be conducted fairly and thus, for example, whether legal professional privilege arises or can be overridden that principle should also apply. As to this it is to be noted that (i) Re C (A Minor) (Interim Care Order: Residential Assessment) [1997] AC 489, sub nom Re C (Interim Care Order: Residential Assessment) [1997] 1 FLR 1 and Re M (Residential Assessment Directions) [1998] 2 FLR 371 show that the court determines what best promotes the welfare of the child in a given case on the basis of the admissible and available evidence, but in determining what that evidence should be its paramount concern is not the welfare of the child, and (ii) in the Derby Magistrates case the House of Lords recognise and confirm that in establishing legal professional privilege the courts have been concerned with identifying how the overall public interest in doing justice is best served and the identification of a condition on which the administration of justice as a whole rests (see Lord Taylor at [1996] 1 AC 487, 507D, [1996] 1 FLR 513, 527B).
(h) Although I confess that it is not clear to me what developments in practice the majority in Re L had in mind when leaving open the argument based on voluntary disclosure (at [1997] AC 16, 28H, [1996] 1 FLR 731, 740E), in my judgment by doing so they did not have in mind or leave open (i) an argument that the duty to disclose might override legal professional privilege in respect of communications between solicitor and client, or (ii) legal professional privilege that has arisen outside proceedings under the Children Act 1989. In my judgment this follows from their rejection of the conclusion in the Oxfordshire case [1994] Fam 151, 161, [1994] 1 FLR 175, 185 that the court had power to override the privilege and their express statement that: 'This does not of course affect privilege arising between solicitor and client' (see 27F-H and 739E-F). As I understand it the reference to 'this' is the conclusion that litigation privilege never arose in the first place.
(i) In Oxfordshire County Council v P [1995] Fam 161, 166B, [1995] 1 FLR 552, 557F Ward J links the duty of disclosure in cases concerning children to that relating to ancillary relief, which in turn is linked to, or is similar to, the duty or obligation to give discovery in other civil proceedings. That last duty, or obligation, is subject to an exception in respect of material covered by legal professional privilege and in my judgment there is no necessary implication that either of the other two duties should override or qualify legal professional privilege once it has been established.
Miscellaneous
Counsel for the guardian ad litem also referred me to, and relied on, Vernon v Bosley (No 2) [1999] QB 18, [1998] 1 FLR 304, and in particular passages in the judgment of Thorpe LJ at (i) 61G-H and 343H-344B respectively, the last sentence of which is in the following terms: 'The court's inquiry cannot be deflected, inhibited or disadvantaged by litigation privilege', and (ii) 63E-F and 34G respectively that: '? it is simply unconscionable for a litigant to run contradictory cases in simultaneous proceedings in the hope of gaining advantage in each'. However, in my judgment these passages do not provide authority for either of the alternative submissions relating to legal professional privilege made by counsel for the guardian ad litem in this case because:
(a) the passage at 60F-61H and 342H-344B respectively is directed to the reports of the doctors which were prepared for, and put in evidence in, the family proceedings (see 25H and 309G respectively) with the result that notwithstanding Re L no claim for legal professional privilege arose in respect of them and their further use and disclosure was governed by the rules relating to the confidentiality of evidence in family proceedings,
(b) the passage at 63E and 345G respectively is qualified by the later passage at 64A and 346C respectively where he says: 'Differing practices and procedures in the family justice system, and the criminal justice system must be reflected in different requirements in, for instance, a criminal trial and a Children Act hearing', which demonstrates that Thorpe LJ did not have the points that arise in this case in mind. Further, when considering the force and justice of this passage it should be remembered that if the father in this case puts the evidence or views of the experts he instructs in the criminal proceedings in evidence in those criminal proceedings his claim for privilege will have gone and such evidence will be in the public domain, and
(c) generally Vernon v Bosley is dealing with very different issues to those that arise in this case.
Overall conclusion on legal professional privilege
In my judgment, for the reasons I have given:
(1) the father can claim legal professional privilege in respect of his
(direct or indirect) communications with, and the reports of, the medical experts he instructs solely for the purposes of the criminal proceedings, and
(2) on that basis (and thus so long as he has not waived the privilege) the father has an absolute right to refuse to disclose such communications and reports in these care proceedings.
Disclosure of the names of the experts instructed by the father in the criminal proceedings
Further, in my judgment this conclusion is supported by:
(a) Lord Jauncey in Re L [1997] AC 16, 25C-E, [1996] 1 FLR 731, 736H-737D where he refers to Worrall v Reich [1955] 1 QB 296, Re Saxton (Dec'd); Johnson and Another v Saxton and Another [1962] 1 WLR 968 and Waugh v British Railways Board [1980] AC 521 and recognises the right of a litigant to refuse to produce reports covered by litigation privilege and recognises that where litigation privilege applies it must continue to play its normal part,
(b) Lord Nicholls in Re L [1997] AC 16, 34E-F, [1996] 1 FLR 731, 745G-746A which when it is read with [1997] AC 16, 32E-G and 33C-D, [1996] 1 FLR 731, 744A-C and 744G-H in my judgment demonstrates that a witness cannot be compelled to disclose material covered by legal professional privilege whether it arises as a result of communication with a lawyer or is covered by the dominant purpose test recognised in Waugh v British Railways Board [1980] AC 521 (which is an aspect of litigation privilege that Lord Nicholls does not include within his examples), and
(c) Harmony Shipping Co SA v Saudi Europe Line Ltd; Same v Orri (Trading as Saudi Europe Line); Same v Davis and Another [1979] 1
WLR 1380, 1385D-E where Lord Denning recognises that expert witnesses cannot be compelled to give evidence of matters covered by legal professional privilege and is therefore not in the same position as a witness of fact who can be compelled to assist the court.
(a) this is not the position of the guardian ad litem and does not reflect the reason why the order for disclosure is being sought in these care proceedings, and
(b) in these care proceedings it is unlikely that leave would be given to admit such additional expert evidence.
Other issues: privilege against self-incrimination and a balancing exercise
(a) The local authority should be in a position without any of this material to feel confident that they can establish the threshold criteria and at present it is a matter of speculation whether this material is
likely to be of any real assistance in these care proceedings.
(b) In any event it is inappropriate for me to make a decision on the likely usefulness or importance of this material in these care proceedings without being shown all the existing evidence in them and hearing submissions in the light thereof on such matters. The guardian ad litem and the parties that supported him did not take this course.
(c) Disclosure would override rights arising in the criminal proceedings which have been established by the common law to further the overall interests of justice. It follows that any disclosure (i) would run counter to that conclusion based on the public interest, (ii) would be thought to result in unfairness, or potential unfairness, to the father if the issue was assessed solely from the point of view of the criminal process, and thus (iii) would require a compelling reason to support it and thus a compelling reason why in this case it would be likely to be of importance in furthering the public interest in promoting the welfare of children generally, or the children in this case.
(d) As I have already mentioned, notwithstanding the undertaking given by the prosecution if disclosure was ordered the information could not be kept from witnesses involved in the criminal trial (ie the medical experts and the mother).
(e) Notwithstanding the fact that the Crown Prosecution Service made no submissions to this effect it seems to me that if the disclosure sought by the guardian ad litem took place there would be a real risk that having regard to points (c) and (d) it would be held in the criminal process that such disclosure resulted in unfairness to the father and that a conviction (if there be one) should not stand.
(f) There is a strong public interest in preserving and promoting the fairness of this criminal trial (and criminal trials generally which relate to matters that are also relevant in care proceedings) which would be jeopardised by the disclosure sought by the guardian ad litem being ordered.
Annex
Upon the undertaking of counsel for the Crown in the case of R v B before the Crown Court at Stafford:
(a) that the Crown will not seek disclosure of any medical report filed on behalf of B in these proceedings (but this undertaking will not prevent potential expert prosecution witnesses in the Crown Court case who are also witnesses in these proceedings, from considering medical reports filed on behalf of B in these proceedings), and
(b) that the Crown will not seek to use any medical report filed on behalf
of B in these proceedings, in the Crown Court case, without the leave of the Crown Court judge, and
(c) that the Crown will not seek disclosure of the identity of any medical expert instructed on behalf of B for the purposes of the Crown Court trial.
OrderOrder accordingly.
PHILIPPA JOHNSON
Barrister
The permission for BAILII to publish the text of this judgment
was granted by Jordan Publishing Limited
Their assistance is gratefully acknowledged.
