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Whistleblowing case raises ‘new and grave issues’ in respect of legal professional privilege

Paralegal sends court details of alleged conversations between advisers and client

Mr Justice Holman has given directions in a case which he described as 'novel, if not unique'.

He found, provisionally, that:

"[I]t raises new and grave issues in relation to one of the most cardinal areas of our law, namely legal professional privilege."

In view of its significance, he directed that "this difficult and interesting case" should be listed before the President of the Family Division.

In Bruzas v Saxton [2018] EWHC 1619 (Fam), the parties divorced in 2013. At that time, the husband was represented by solicitors, but the wife acted in person. A consent order was made in 2014 providing for a clean break by which there was a capital redistribution and the husband made various payments, expressed to be instalments of a lump sum, to the wife. The wife later applied for the order to be set aside and in December 2017 Parker J dismissed her application.

In January 2018, Parker J received through the post a quantity of documents or "material" from a paralegal employed by the firm of solicitors acting for the husband, both in 2013/2014 and still in 2017.

Holman J said:

"I stress that I have not personally seen any of those documents or material at all. I understand, however, that they contain, or include, some account of things allegedly said between the husband, as client, and his solicitor (by whose firm the informant was employed) and junior counsel during the course of 2017. It provisionally appears, as I understand it, that the paralegal was acting in some way as what is colloquially known as a "whistle blower". The wife herself has said several times today that she does not know that person and has never met her and has never communicated directly with her."

Parker J supplied copies of all the documents and material to both parties.
In advance of a further hearing before Parker J the wife sent to the solicitors then acting on behalf of the husband (who were not the solicitors who had previously acted on his behalf, and are not the solicitors acting for him now) a formal but unissued application notice in Form N244. Under paragraph 3 of the application notice, in answer to the question, "What order are you asking the court to make and why?" the wife wrote, "To overturn judgment made on 11 December 2017 that dismissed application for setting aside consent order. Grounds are perjury and perverting the course of justice committed by respondent and his legal team."

Parker J recused herself at that hearing and the matter came before Holman J. In the latest hearing he was unable to resolve any of the issues of admissibility of the documents sent to Parker J partly because the transcripts of the hearings before Parker J were not yet available. Nor had the wife formally issued her application in Form N244. 

On the question of admissibility of the documents, Holman J noted:

"[I]t is not difficult to see that if some employee of a firm of a solicitors can disclose what is otherwise prima facie privileged material, whether to the court or to the other side, the whole edifice of legal professional privilege might rapidly crumble. On the other hand, fraud is fraud, and my current understanding is that legal professional privilege cannot, in the end, withstand the unravelling of fraud or similar malpractices if (I stress if) they have taken place."

For the judgment, click here.

29/6/18