The parties had lived together in a house owned in the defendant’s name and in which she claimed an interest. The claimant’s solicitors notified NCIS that they thought the defendant had acted illegally in setting off against his VAT liability the VAT on works carried out on his own property. Because of the delay which would ensue and the duty not to tell the other party, they applied ex parte to vacate the trial date.
Held: The court could continue to hear the public law element despite the fact that the parties had resolved the underlying dispute. ‘The issue at the very centre of this appeal is whether s 328 applies to the ordinary conduct of legal proceedings at all. There is also a narrower issue, namely if it does, whether Parliament can be taken, without using clear words to that effect, to have intended to override the important principles underlying legal professional privilege and the strict terms on which lawyers are permitted to have access to documents disclosed in the litigation process. ‘ In implementing the 2001 Directive, the UK had gone beyond what was required. The need to be able to receive legal advice in confidence is a fundamental part of the right to a fair trial: ‘ . . . the proper interpretation of s 328 is that it is not intended to cover or affect the ordinary conduct of litigation by legal professionals. That includes any step taken by them in litigation from the issue of proceedings and the securing of injunctive relief or a freezing order up to its final disposal by judgment. We do not consider that either the European or the United Kingdom legislator can have envisaged that any of these ordinary activities could fall within the concept of ‘becoming concerned in an arrangement which . . . facilitates the acquisition, retention, use or control of criminal property’. On the narrower ground ‘There is nothing in the language of s 328 to suggest that Parliament expressly intended to override legal professional privilege’. Clear language would have been required: ‘even if s 328 does apply to the ordinary conduct of legal proceedings, it does not override legal professional privilege. ‘
Judges:
Lord Justice Brooke (Vice President Of The Court Of Appeal, Civil Division) Lord Justice Mance Lord Justice Dyson
Citations:
[2005] 4 All ER 609, [2005] EWCA Civ 226, Times 14-Mar-2005, [2006] 1 WLR 3083
Links:
Statutes:
Proceeds of Crime Act 2002 328, Council Directive of 4th December 2001 (2001/97/EEC), Council Directive of 10th June 1991 (91/308/EEC), The Proceeds of Crime Act 2002 (Business in the Regulated Sector and Supervisory Authorities) Order 2003 (SI 2003 No 3074), European Convention on Human Rights 6
Jurisdiction:
England and Wales
Citing:
Cited – Sun Life Assurance Co of Canada v Jervis HL 1944
The parties had disputed the terms of an insurance policy. The House considered whether it could hear the case once the dispute had been settled.
Held: There was no remaining dispute for the House to settle. Viscount Simon LC said: ‘My Lords, . .
Cited – P v P (Ancillary Relief: Proceeds of Crime) FD 8-Oct-2003
The parties sought guidance from the court on the circumstances which arose in ancillary relief proceedings where a legal representative came to believe that one party might be holding the proceeds of crime. In the course of ancillary relief . .
Cited – Ainsbury v Millington (Note) HL 1987
There had been a dispute between the parties as to a council house tenancy, but by the time it came before the House, the tenancy had ceased to exist, and the action was academic.
Held: Once the parties have settled their dispute there remains . .
Cited – Regina v Secretary of State for the Home Department, Ex Parte Salem HL 3-Mar-1999
The House of Lords has the power to hear a case where the parties have in effect settled and there remains no lis at issue, but the House will not hear such an academic case where no general issue of importance is at stake, or the facts are . .
Cited – Golder v The United Kingdom ECHR 21-Feb-1975
G was a prisoner who was refused permission by the Home Secretary to consult a solicitor with a view to bringing libel proceedings against a prison officer. The court construed article 6 of ECHR, which provides that ‘in the determination of his . .
Cited – Callery v Gray (1) and (2) HL 27-Jun-2002
Success fees and ATE premiums were recoverable
Objection was made to a claimed uplift of 20% sought by the plaintiff’s solicitors. The defendant’s insurers said that there had been little at risk for them.
Held: The system of conditional fees insurance had been introduced to remedy defects . .
Cited – Attorney-General v Able and Others QBD 28-Apr-1983
The Attorney General sought a declaration as to whether it would be the crime of aiding and abetting or counselling and procuring suicide, to distribute a booklet published by the respondent which described various effective ways of committing . .
Cited – Marleasing SA v La Comercial Internacional de Alimentacion SA ECJ 13-Nov-1990
Sympathetic construction of national legislation
LMA OVIEDO sought a declaration that the contracts setting up Commercial International were void (a nullity) since they had been drawn up in order to defraud creditors. Commercial International relied on an EC . .
Cited – Johnston v Chief Constable of the Royal Ulster Constabulary ECJ 15-May-1986
The principles of the European Convention for the Protection of Human Rights must be taken into consideration in community law. The principle of effective judicial control laid down in article 6 of Council Directive 76/207, a principle which . .
Cited – Regina v Derby Magistrates Court Ex Parte B HL 19-Oct-1995
No Breach of Solicitor Client Confidence Allowed
B was charged with the murder of a young girl. He made a confession to the police, but later changed his story, saying his stepfather had killed the girl. He was acquitted. The stepfather was then charged with the murder. At his committal for trial, . .
Cited – Ocalan v Turkey ECHR 12-Mar-2003
The applicant had led Kurdish separatists training and leading a gang of armed terrorists. Warrants for his arrest had been taken out in Turkey. He had lived for many years in Syria but then sought political asylum in Greece, Russia and Italy, none . .
Cited – AM and S Europe Ltd v Commission of The European Communities ECJ 18-May-1982
The court set out the rationale for legal professional privilege: ‘Whether it is described as the right of the client or the duty of the lawyer, this principle has nothing to do with the protection or privilege of the lawyer. It springs essentially . .
Cited – Foxley v United Kingdom ECHR 20-Jun-2000
A bankrupt was suspected of disposing of his assets to avoid a confiscation order. The trustee in bankruptcy obtained an order for the bankrupt’s post to be diverted to her whilst he was in prison. She opened all post and copied it before forwarding . .
Cited – S v Switzerland ECHR 28-Nov-1991
Access to legal advice on a private and confidential basis is a fundamental principle not lightly to be interfered with. Fair trial rights may require communications with lawyers to be protected, and that confidential communications between lawyers . .
Cited – Campbell v The United Kingdom ECHR 25-Mar-1992
The applicant complained about the compatibility with the European Convention of the Prisons rule 74(4) which provided that ‘every letter to or from a prisoner shall be read by the Governor . . and it shall be within the discretion of the Governor . .
Cited – Regina v Special Commissioner And Another, ex parte Morgan Grenfell and Co Ltd HL 16-May-2002
The inspector issued a notice requiring production of certain documents. The respondents refused to produce them, saying that they were protected by legal professional privilege.
Held: Legal professional privilege is a fundamental part of . .
Cited – Three Rivers District Council and others v Governor and Company of the Bank of England (No 6) HL 11-Nov-2004
The Bank anticipated criticism in an ad hoc enquiry which was called to investigate its handling of a matter involving the claimant. The claimant sought disclosure of the documents created when the solicitors advised employees of the Bank in . .
Cited – Regina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
Cited – Home Office v Hariette Harman HL 11-Feb-1982
The defendant had permitted a journalist to see documents revealed to her as in her capacity as a solicitor in the course of proceedings.
Held: The documents were disclosed under an obligation to use them for the instant case only. That rule . .
Cited – Taylor and Others v Director of The Serious Fraud Office and Others HL 29-Oct-1998
The defendant had requested the Isle of Man authorities to investigate the part if any taken by the plaintiff in a major fraud. No charges were brought against the plaintiff, but the documents showing suspicion came to be disclosed in the later . .
Cited – MD Foods v Baines and others; Associated Dairies Ltd v Baines and Others HL 27-Feb-1997
The appellant dairy sold milk to the defendant roundsmen, each agreeing not to sell milk by retail to the others customers. The defendant began to buy his milk elsewhere, and claimed the agreement should have been registered as a restrictive trade . .
Cited – Regina v Cox and Railton 1884
(Court for Crown Cases Reserved) The defendants were charged with conspiracy to defraud a judgment creditor of the fruits of a judgment by dishonestly backdating a dissolution of their partnership to a date prior to a bill of sale given by Railton . .
Cited – Regina v Central Criminal Court ex parte Francis and Francis HL 1989
The police had obtained an ex parte order for the production of files from a firm of solicitors relating to financial transactions of one of their clients. The police believed that the client had been provided with money to purchase property by an . .
Cited by:
Cited – Energy Financing Team Ltd and others v The Director of the Serious Fraud Office, Bow Street Magistrates Court Admn 22-Jul-2005
The claimants sought to set aside warrants and executions under them to provide assistance to a foreign court investigating alleged unlawful assistance to companies in Bosnia Herzegovina.
Held: The issue of such a warrant was a serious step. . .
Cited – Burkle Holdings Ltd v Laing TCC 23-Mar-2005
The parties had each instructed the same solicitor, but now disputed the entitlement of the other to see documents held by the solicitor. . .
Cited – Rolls-Royce plc v Unite the Union CA 14-May-2009
The parties disputed whether the inclusion of length of service within a selection matrix for redundancy purposes would amount to unlawful age discrimination. The court was asked whether it was correct to make a declaratory judgment when the case . .
Cited – Hutcheson v Popdog Ltd and Another CA 19-Dec-2011
The claimant had obtained an injunction to prevent the defendant publishing private materials regarding him. That injunction had been continued by consent but was no challenged by a third party news publisher.
Held: Leave to appeal was . .
Cited – GH, Regina v SC 22-Apr-2015
Appeal against conviction for entering into an arrangement for the retention of criminal funds. The defendant said that at the time of the arrangement there were not yet any criminal funds in existence. A had set up websites intending to con . .
Lists of cited by and citing cases may be incomplete.
Criminal Practice, Legal Professions, Human Rights
Updated: 17 May 2022; Ref: scu.223272