Re D (a child): CA 14 Jun 2011

In the course of care proceedings, the mother had revised her version of events, and then explained why. The father sought disclosure of the attendance notes of her solicitor, saying that she had waived any privilege in the advice given. She now appealed against the order for disclosure.
Held: The appeal failed. The mother had waived professional legal privilege. The mother had in the course of her statement made not only glancing reference to her discussions with her solicitor, but had recounted a detaile dhistory. This was a highly unusual case, but the judge’s application of the law could not be criticised: ‘If it demonstrates that even experienced family lawyers were unaware of the full ramifications of waiver of professional privilege, then the case may be of benefit to the profession. To say no more than that ‘I am acting on the advice of my solicitors and counsel’ will not ordinarily justify further disclosure of the advice or of the circumstances in which any new witness statement came to be drafted. Counsel and solicitors will be aware (or ought to be aware) of the fact that advice may have been given to prompt the change of heart or change of attitude and they should be on guard to protect their client from revealing that advice either in the written evidence or when giving oral evidence to the court. Judges must also be astute to anticipate an unintentional observation which results in privilege being waived and must be ready to warn a witness of any such danger. But on the facts of this case, the law is clear: privilege was waived and fairness demanded further full disclosure. I would therefore dismiss the appeal.’

Ward, Rimer, Elias LJJ
[2011] 2 FCR 585, [2011] 4 All ER 434, [2011] Fam Law 926, [2011] EWCA Civ 684
England and Wales
CitedIn Re L (A Minor) (Police Investigation: Privilege) HL 22-Mar-1996
A report obtained for Children Act proceedings has no privilege against use in evidence. Such proceedings are in the nature of inquisitorial proceedings. Litigation privilege was not applicable in care proceedings and a report prepared may be given . .
CitedLoizou, Regina v CACD 14-Jul-2006
The defendant appealed against her conviction for assisting in the disposal of the proceeds of criminal activity, saying that the judge had incorrectly ruled that she had waived legal privilege as to the advice given to her at the police station, . .
CitedBrennan and others v Sunderland City Council Unison GMB EAT 16-Dec-2008
No Waiver for disclosure of Advice
EAT PRACTICE AND PROCEDURE: Admissibility of evidence
The claimant sought disclosure of certain legal advice on the basis that its effect, and a summary of its contents, had been put before the court and . .

Lists of cited by and citing cases may be incomplete.

Children, Legal Professions

Updated: 10 November 2021; Ref: scu.440764