Continuing his series discussing the impact on family law and practice of legal developments in other areas, David Burrows considers the effect of legal professional privilege in the context of advice given by lawyers to those engaged in family law disputes and the circumstances in which the right to confidentiality of such advice may be lifted.

Legal professional privilege and family law

Advice privilege and family proceedings

Legal professional privilege is a right (not a “privilege”, as Lord Nicholls explains in the passage below) which has long been known to the common law; at least since the early 19th century. Different aspects of the privilege have recently been in the family law headlines. The first is an example of where the rules in relation to confidentiality – in that case to privilege – seem to have been overlooked by a lower court; and the second an example of where the form of the work undertaken by the lawyer did not qualify as “legal” at all. One example comes from children proceedings, the second from a very big money case.

Legal professional privilege has its roots in confidentiality. It is a single privilege with two branches: advice privilege and litigation privilege (ie which enables to a lawyer to accumulate information in relation to anticipated litigation in a way which is confidential to the clients and which need not be disclosed in any later litigation). This article is concerned with advice privilege. This enables a client to speak frankly to his or her lawyer about legal matters (Anderson v Bank of British Columbia (1876) 2 Ch D 644). Subject to narrow exceptions, the client is entitled to assume that information cannot be passed on by the lawyer, without the client’s consent, to a third party; nor can it be disclosed in court (see eg R v Derby Magistrates’ Court exp B [1995] UKHL 18; [1996] AC 487; [1996] 1 FLR 513). The advice can be in any “relevant legal context” (Balabel v Air India [1988] Ch 317, CA). That is to say, it need not relate only to litigation, provided that the context and the advice is about legal affairs.

Confidentiality and the mature child

That a child of sufficient age and understanding is as entitled to rights of advice privilege as any other individual – if there were any doubt – is shown by In re E (A Child) [2016] EWCA Civ 473; [2016] 4 WLR 105; [2017] 1 FLR 1675. In that case the Court of Appeal was critical of the way the judge dealt with a child’s confidential evidence in care proceedings; and a solicitor was criticised for failing properly to respect the advice privilege of A, the solicitor’s 14-year-old client. A’s solicitor (SE) was criticised for failing properly to respect A’s right to advice privilege. On privilege in the Court of Appeal McFarlane LJ started from the premise that:

 [90] … A, as a party to the proceedings, who is represented by his own solicitor, must be entitled to the same protection afforded to all other individuals who undertake communications with their lawyers. No suggestion was made in the hearing of this appeal that any different standard or approach should be taken to A either because he is a child or because he may lack the capacity to instruct his solicitor directly.”

McFarlane LJ went on to cite Lord Taylor in R v Derby Magistrates’ Court, ex p B (above) on the extent to which legal professional privilege applies. In the Derby case [1996] AC 487, 507 Lord Taylor had 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 in confidence will never be revealed without his consent. Legal professional privilege is thus 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.”

In Re E, Advice privilege arose from a visit by SE and A’s children’s guardian to see A. The main object of that meeting was to enable SE to go through with A the evidence against him. McFarlane LJ explained why the right to privilege was engaged, and then expressed concern that there had been no discussion between the solicitor and his client of privilege or that the lawyer was being asked to waive it by the court. Further, he was critical of her for not taking account of the extent to which privilege had been breached and how this affected A’s right to a fair trial under Art 6 of the European Convention on Human Rights. He was critical of the order made by the judge for the guardian to file evidence about the meeting with A:

 [97] … The judge [made] an order requiring a party’s representative to file a statement setting out what transpired at a meeting expressly established to elicit that party’s instructions to his lawyers on serious allegations of abuse. That is a significant and highly unusual order to make and, irrespective of the position of the parties, the judge ought to have questioned the basis of the proposed order and been aware of the need to protect A’s Art 6 rights and his entitlement to legal professional privilege.”

It is perhaps worth recording, in conclusion, that many aspects of modern child law and in relation to the mature child (“of age and understanding”) derive from Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7; [1986] 1 AC 112, [1986] 1 FLR 224; that that case turned on the issue of confidentiality for contraceptive advice between an imaginary child (no-one suggested that Mrs Gillick’s under-16 age daughters were seeking contraceptive advice) and her imaginary doctor; and that advice privilege for the mature child has its roots in similar principles to those considered in Gillick.

Lawyer as person of business: ‘relevant legal context’

There was much publicity last May for the judgment of Haddon-Cave J (handed down in December 2016) in AAZ v BBZ [2016] EWHC 3234 (Fam). In the absence of BBZ (H), he was ordered to provide to AAZ (W) his former wife assets worth just over £453M (yes, really: £453,576,152 per [134] of the judgment). This sum was to include a modern art collection (estimated value £90,581,865).

In a slightly later, and less publicised (but now reported) judgment (20 December 2016), which emerged at the same time (May 2017) as the first, Haddon-Cave J considered the dealings of the then solicitor for H (SZ) with insurance of the art collection (AAZ v BBZ (No 2) [2016] EWHC 3349 (Fam); reported as Z v Z (Legal Professional Privilege: Fraud Exception)  [2017] 4 WLR 84). The question for the court was: was information on SZ’s files covered by advice privilege?

Haddon-Cave J held that the arranging of insurance, and therefore information concerning it, was not covered by privilege: it was not a ‘relevant legal context’. (Presumably the information with SE was valuable for enforcement of W’s judgment.) SZ was acting for H, said Haddon-Cave J, as a “person of business” (Minter v Priest [1930] AC 558, HL). There was no legal context in a lawyer arranging insurance for a client, any more than there would be for any agent who fixed up insurance. SZ was therefore required to give evidence about the insurance of the art collection.

In addition, the judge held that in any event such was H’s fraud in the case that he was entitled to “lift” legal professional privilege. With the greatest respect to Haddon-Cave J, this was an odd way to put it. If there was no advice in a “relevant legal context” legal advice privilege could not apply. That was an end of the matter.

If, on the other hand, the iniquity exemption applied (per Stephen J in R v Cox and Railton (1884) 14 QBD 153, where the solicitor was deceived by the “iniquity” of his client: for another view on the iniquity exemption, see this earlier post, Panama papers: take legal professional privilege and a little iniquity… ) no question of privilege could arise in the first place; but at least the client must have sought legal advice. Haddon-Cave J had held that there was no legal advice. Privilege could not therefore be “lifted”. To refer to the iniquity exemption in the context of Mr BZZ was surely merely to pile Pelion needlessly upon Ossa?

David Burrows’ latest book is Evidence in Family Proceedings (LexisNexis / Jordans Family Law Price: £70.00) which is reviewed here.