Privilege

Disclosure and inspection of documents - Legal professional privilege - Communications between legal adviser and client

Walter Lilly & Co Ltd v Mackay and another: QBD (TCC) (Mr Justice Akenhead): 15 March 2012

In 2004, the claimant company was employed by the second defendant company to construct a house in London. Owing to delays, the couple who were to be the owners and occupiers of the house (Mr and Mrs M) became disillusioned with the claimant and in October 2006 retained the services of a firm of claims consultants, K.

The written retainer stated that K was to provide 'contractual and adjudication advice'. Mr and Mrs M had contact with two employees of K, who had both been called to the bar, but did not hold themselves out as practising barristers but as 'lawyers'.

Proceedings were commenced by the claimant against Mr M and the second defendant. In the course of those proceedings, the defendants disclosed some of the correspondence to and from K, although they took the view that much of the K correspondence attracted privilege. In February 2012, the second defendant wrote to the claimant, stating that four privileged documents relating to K had been disclosed and ought not to have been placed in the trial bundle. The claimant responded to the effect that the four documents were not privileged. The claimant made an application for disclosure against the second defendant of all correspondence with or created by K relevant to the issues in the proceedings. The second defendant claimed legal professional or legal advice privilege.

The primary argument revolved, inter alia, around whether or not the staff of K were engaged as solicitors or barristers. There was no suggestion that K as a firm was qualified or certified to provide legal advice. However, the defendants submitted that a client who in good faith instructed an organisation or person which he mistakenly believed was a qualified solicitor or barrister and then received legal advice from them was entitled to the privilege protection. The application would be allowed. The protection of privilege was not intended to extend to the relationship between a person and another who was not in fact a qualified and practising lawyer, save in exceptional circumstances (see [17] of the judgment).

On the evidence, K did not hold itself out as a firm of solicitors or group of barristers, and used the neutral terminology of 'advocate' and 'legally qualified person' instead of offering the services of a barrister or solicitor. Further, neither of the two individuals had been practising barristers or solicitors or employed as such. The reality was that the first defendant had retained K not as barristers but as an organisation to provide them with claims and project-handling advice. The fact that the first defendant had honestly understood the two individuals to be qualified and practising barristers or solicitors was immaterial, since their employer had not been retained to provide the services of barristers or solicitors (see [15]-[17] of the judgment).

It followed that legal professional or legal advice privilege did not apply in the instant case, and otherwise disclosable documents should have been disclosed (see [18] of the judgment).

Sean Brannigan QC and Annaliese Day (instructed by Reynolds Porter Chamberlain) for the claimant; David Sears QC, Serena Cheng and David Johnson (instructed by Nabarros) for the defendant.