The new Civil Procedure Rules were ultra vires and invalid insofar as they purported to remove any right of a solicitor’s client to assert his right of confidence as against his solicitor. The solicitor was therefore unable in this case to defend himself against a wasted costs order, but the court could allow for the refusal of the client to waive his privilege.
Toulson J said: ‘Article 6 gives every person a right to a fair trial, but I do not accept that it follows as a general proposition that this gives a right to interfere with another person’s right to legal confidentiality. If that were generally so, the right to legal confidentiality recognised by the court would be useless, since its very purpose is to enable a person to communicate with his lawyer secure in the knowledge that such communications cannot be used without his consent to further another person’s cause. In the absence of a general right under Article 6 to make use of another person’s confidential communications with his lawyer, I do not see how solicitors have a particular right to do so under that Article for the purpose of defending a wasted costs application.’
Times 12-Aug-1999, Gazette 11-Aug-1999,  EWHC 832 (Comm),  Lloyds Rep PN 919,  2 Costs LR 10,  1 WLR 272,  3 All ER 673,  UKHRR 273,  PNLR 852,  HRLR 54,  CPLR 425
England and Wales
Cited – Masri v Consolidated Contractors International Co Sal and Others HL 30-Jul-2009
The claimant sought to enforce a judgment debt against a foreign resident company, and for this purpose to examine or have examined a director who lived abroad. The defendant said that the rules gave no such power and they did, the power was outside . .
Lists of cited by and citing cases may be incomplete.
Legal Professions, Costs, Professional Negligence, Human Rights
Updated: 07 May 2022; Ref: scu.80789