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, B was called as a prosecution witness. He was asked by the defence about the instructions he had given his solicitors in relation to his original account of what had taken place. He declined to waive privilege.
Held: Witness orders were not to be used to breach solicitor and client professional privilege. Legal professional privilege may protect all papers. The privilege is of overriding importance. ‘The law has been established . . subject to recognised exceptions, communications seeking professional legal advice, whether or not in connection with pending court proceedings, are absolutely and permanently privileged from disclosure even though, in consequence, the communications will not be available in court proceedings in which they might be important evidence.’
Lord Taylor of Gosforth CJ said: ‘The principle which runs through all these cases, and the many other cases which were cited, is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer will never be revealed without his consent. Legal professional privilege is much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests. It is not for the sake of the applicant alone that the privilege must be upheld. It is in the wider interests of all those who might otherwise be deterred from telling the whole truth to their solicitors.’ and ‘Putting it another way, if a balancing exercise was ever required in the case of legal professional privilege, it was performed once and for all in the 16th century, and since then has applied across the board in every case, irrespective of the client’s individual merits.’
Lord Nicholls of Birkenhead drew attention to the tension between the LPP rule on the one hand and, on the other, the public interest: ‘that all relevant material should be available to courts when deciding cases. Courts should not have to reach decisions in ignorance of the contents of documents or other material which, if disclosed, might well affect the outcome.’ He went on to reject the idea that a balancing exercise could be conducted as regards LPP on the facts of the particular case.
Lord Taylor of Gosforth CJ
Independent 27-Oct-1995, Times 25-Oct-1995,  AC 487,  UKHL 18,  1 FLR 513,  1 Cr App R 385, (1995) 159 JP 785,  Fam Law 210,  3 WLR 681,  4 All ER 526
Magistrates Courts Act 1980 97
England and Wales
Appeal froom – Regina v Derby Magistrates Court Ex Parte B QBD 31-Oct-1994
A solicitor was correctly required by the court to produce his client attendance notes from the conduct of the defence for a client previously acquitted of murder for use in a trial of a later Defendant. . .
Overruled – Regina v Ataou CACD 1988
Legal professional privilege is an interest which falls to be balanced against competing public interests: ‘When a communication was originally privileged and in criminal proceedings privilege is claimed against the defendant by the client concerned . .
Cited – Balabel v Air India CA 1988
When considering claims for legal professional privilege, the court should acknowledge the ‘continuity of communications’. However, where the traditional role of a solicitor had expanded, the scope of legal professional privilege should not be . .
Cited – Greenhough v Gaskell CA 1833
The question arose whether the defendant solicitor, sued for fraudulently concealing that his client was insolvent and thereby inducing the plaintiff to issue a promissory note on the client’s behalf, could claim privilege in respect of . .
Cited – Greenough v Gaskell 17-Jan-1833
On a bill which sought to charge a solicitor with a fraud practised on the Plaintiffs in the course of proceedings on his client’s behalf, the Court refused to order the production of entries and memorandums contained in the Defendant’s books, or of . .
Cited – Berd v Lovelace 1576
A solicitor served with process to testify, ordered not to be examined. Thomas Hawtry, gentleman was served with a subpoena to testify his knowledge touching the cause in variance ; and made oath that he hath been, and yet is a solicitor in this . .
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 – B and Others Russell McVeagh McKenzie Bartleet and Co v Auckland District Law Society, Gary J Judd PC 19-May-2003
(New Zealand) Solicitors resisted requests to disclose papers in breach of legal professional privilege from their professional body investigating allegations of professional misconduct against them.
Held: The appeal was allowed. The . .
Cited – Mount Murray Country Club Ltd and others v Commission of Inquiry Into Mount Murray and Another (1) PC 7-Jul-2003
(Isle of Man) The company appealed an order requiring disclosure of their tax documents to an enquiry. The enquiry into possible corruption had been ordered by the Tynwald.
Held: The provisions of the Act protecting tax documents from . .
Cited – Abbey National Plc v Clive Travers and Co (a Firm) CA 18-May-1999
The defendants appealed an order for discovery saying it would infringe their duty of confidence to their clients. The firm had acted for the buyer, seller and lender. A fraud on the lender was alleged. The solicitors sought to rely upon the . .
Cited – Regina (Howe) v South Durham Magistrates Court QBD 13-Feb-2004
The defendant was convicted of driving whilst disqualified. He had put the prosecution to proof of the fact that it was he who had been prosecuted. The prosecution called his solicitor to give evidence that it was his client who had been banned on . .
Cited – United States of America v Philip Morris Inc and Others and British American Tobacco (Investments) Ltd CA 23-Mar-2004
The defendants appealed orders requiring them to produce evidence for use in the courts in the US.
Held: It was the pleasure and duty of British courts to respond positively to a letter of request. Public interest required that a court should . .
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 – Bowman v Fels (Bar Council and Others intervening) CA 8-Mar-2005
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 . .
Cited – Kuwait Airways Corporation v Iraqi Airways Company (No 6) CA 16-Mar-2005
The defendant company appealed against an order allowing inspection of documents for which litigation privilege had been claimed. It was said that the defendants had been involved in perjury in previous proceedings between the parties.
Held: . .
Cited – Regina v Grant CACD 4-May-2005
The police had secretly and unlawfully recorded conversations between the defendant and his solicitor whilst he was in custody. The judge rejected a claim of abuse of process. He appealed his conviction for murder.
Held: The appeal was . .
Cited – West Yorkshire Police v Lincoln Crown Court and Another Admn 27-Apr-2005
Police officers had unlawfully tape recorded private and confidential conversations between a suspect in custody and his solicitor. The police officers who had been asked to investigate the complaint appealed against an order saying that the tapes . .
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 – Fulham Leisure Holdings Ltd v Nicholson Graham and Jones ChD 14-Feb-2006
The defendant solicitors were being sued for professional negligence. The claimants had taken legal advice after termination of the retainer which led to the present action, and sought to rely upon part of counsel’s opinion. The defendants sought . .
Cited – Cunliffe, Regina (on the Application of) v West London Magistrates’ Court Admn 6-Jul-2006
The claimant was an employee of the company manufacturing alcohol measuring devices. He sought judicial review of decisions by magistrates to require him to attend court to give evidence which would require him to breach obligations of confidence he . .
Cited – Regina v Lewes Crown Court and Chief Constable of Sussex Police ex parte Nigel Weller and Co Admn 12-May-1999
The applicant sought judicial review of a decision to grant a search warrant in respect of his offices, saying that the material covered was protected by legal privilege. The warrant had been unavailable under section 8 because of the privilege, and . .
Cited – Prudential Plc and Another, Regina (on the Application of) v Special Commissioner of Income Tax and Another Admn 14-Oct-2009
The company had obtained legal advice but had taken it from their accountants. The Revenue sought its disclosure, and the company said that as legal advice it was protected by legal professional privilege.
Held: The material was not protected. . .
Cited – Capper v Chaney and Another ChD 8-Jul-2010
Police had seized substantial sums of cash from the first defendant acting under the 2004 Act. The claimant said that andpound;250,00 was his and sought its return. The Commissioner argued that the current proceedings were an abuse of process.
Cited – Quinn Direct Insurance Ltd v The Law Society of England and Wales CA 14-Jul-2010
Q had provided professional indemnity insurance to a firm of solicitors in which the Law Society had intervened. Claims were made against the firm, but Q declined to pay, saying that the apparently fraudulent activities of the firm fell outside the . .
Cited – Seaton v Regina CACD 13-Aug-2010
The defendant had been accused of recent fabrication of evidence, having given evidence in court which varied from that given in interview on arrest. The crown had commented on his failure to call his solicitor to give evidence. The defendant said . .
Cited – Prudential Plc and Another, Regina (on The Application of) v Special Commissioner of Income Tax and Others CA 13-Oct-2010
The court was asked whether advice given by an accountant could be protected against disclosure by legal professional privilege. The company had taken advice from its accountants, and objected to disclosure of that advice to the tax authorities . .
Cited – Mireskandari v Associated Newspapers Ltd CA 23-Feb-2011
The claimant appealed against orders made in the course of his defamation claim. . .
Cited – Prudential Plc and Another, Regina (on The Application of) v Special Commissioner of Income Tax and Another SC 23-Jan-2013
The appellants resisted disclosure to the revenue of advice it had received. It claimed legal advice privilege (LAP), though the advice was from its accountants.
Held: (Lords Sumption and Clarke dissenting) LAP applies to all communications . .
Cited – Maxwell, Regina v SC 20-Jul-2011
The defendant had had his conviction for murder set aside after a finding of gross prosecutorial misconduct by the police. The Court was now asked as to the propriety of the order for a retrial. The police involved in the case had misled the CPS, . .
Cited – Brown, Regina v CACD 29-Jul-2015
The claimant, a patient hld at Rampton Hospital faced charges of attempted murder of two nurses. His lwayers had asked for the right to see their client in private, but eth Hospital objected, insisting on the presence of two nurses at all times. . .
Cited – V v W FC 2-Dec-2020
FDR Appointment Must Remain Confidential
XYZ had been appointed to value a family company within financial relief proceedings, but on seeking payment of their fees, and facing a counterclaim alleging negligence, they sought disclosure of the transcript of the Financial Dispute Resolution . .
Lists of cited by and citing cases may be incomplete.
Criminal Practice, Legal Professions
Updated: 01 November 2021; Ref: scu.86533