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Breaching Legal Advice Privilege

Henry Clayton, barrister of 4PB, considers the circumstances in which documents which purport to be privileged are, in fact, admissible.


Henry Clayton, barrister of 4PB.



What if assets have been moved to frustrate enforcement and the only person who knows where is the other party's former solicitor? Privilege protects that party, right? Not necessarily. There are many circumstances in which documents which purport to be privileged are, in fact, admissible. If such a document contains important evidence, practitioners need to ask themselves whether its apparent status can be challenged.


First stage: does privilege even apply in the circumstances?

Legal advice privilege covers communications between lawyer and client for the purpose of furnishing legal advice, but not all communications between client and lawyer attract the privilege. The 'legal spectacles' test was formulated by the House of Lords in the leading case of Three Rivers DC v Bank of England (No.6) [2004] UKHL 48, [2005] 1 AC 610, in the speech of Lord Rodger at [60]. In that matter the issue was the extent to which communications by the Bingham Inquiry Unit about 'presentational matters' was held to be privileged:

"Either expressly or impliedly, the BIU was asking them to put on legal spectacles when reading, considering and commenting on the drafts."

The courts have traditionally rejected calls to interpret 'legal advice' narrowly so as to restrict the operation of the privilege. In Balabel v Air India [1988] 1 Ch 317, Taylor LJ said at 330G:

"legal advice is not confined to telling the client the law; it must include advice as to what should prudently and sensibly be done in the relevant legal context."

Yet this authority also makes it clear that there are limits to how broadly the privilege will be drawn. Taylor LJ continued at 331H:

"those dicta in the decided cases which appear to extend privilege without limit …are too wide. It may be that the broad terms used in the earlier cases reflect the restricted range of solicitors' activities at the time. Their role then would have been confined for the most part to that of lawyer and would not have extended to business adviser or man of affairs."

So communications with a business adviser who just happens to be a lawyer will not be privileged if he/she is not expected to put his/her 'legal spectacles' on. Similarly, it was held by the Court of Appeal in USA v Philip Morris [2004] EWCA Civ 330 (the tobacco lobby case) in the speech of Brooke LJ at [80] that:

"advice or assistance in collecting and collating, listing, spring-cleaning, storing, transporting and warehousing documents does not amount to legal advice ….and is not the sort of assistance that requires any knowledge of the law."

It is long established that there is no privilege in facts, only communications. Accordingly, it was held in Dwyer v Collins (1852) 7 Exch 639 at [646] that:

"the privilege does not extend to matters of fact which the attorney knows by other means than confidential communication with his client, though, if he had not been employed as attorney, he probably would not have known them."

In G v G [2015] EWHC 1512 (Fam), heard by Roberts J, the wife applied to set aside a consent order after four years on the grounds that the husband had not disclosed he was the primary beneficiary of a family trust. An email by her leading counsel showed that she was aware of possible non-disclosure two years earlier and delayed. Her Ladyship found that there was no privilege attaching to the email which was not for purposes of legal advice (rather recommending a solicitor).


Who is the communication between?

In AAZ v BBZ [2016] EWHC 3349 (Fam) the husband had disengaged from the litigation and 'relocated' the assets. A witness summons was directed against the solicitor who was involved in this relocation. Haddon-Cave J found that privilege did not apply because he had done so as a man of affairs (and/or because of the iniquity/fraud exception discussed below).

On appeal, reported as Kerman v Akhmedova [2018] EWCA Civ 307, [2018] 2 FLR 354, the Court of Appeal emphasised the point that the crucial communications were not between client and lawyer at all, but, in the solicitor's role as a fixer, between him and third parties.

Andrews J confirmed the following in Director of Serious Fraud Office v Eurasian National Resources Corporation Ltd [2017] EWHC 1017 (QB)

a. At [65]: "Interposing a lawyer in the chain of communication will not improve the client's chances of claiming legal advice privilege."

b. At [75]: "Legal advice privilege does not extend to documents obtained from third parties to be shown to a solicitor for advice."


Second stage: if privilege applies, can it be set aside by reason of inequity/fraud?

Privilege may not prevent disclosure where the document was prepared for, or in connection with, a nefarious purpose. The leading case on setting aside privilege is Barclays Bank v Eustice [1995] WLR 1238 (CA) in which the bank had granted a secured loan to the defendants (a mother and son) which they had taken steps to defeat by assigning the property in question to their sons/grandsons and arranging for tenancies to be granted.  It was concluded at 1252C that there was a strong prima facie case that the transaction was an undervalue for the purposes of Insolvency Act 1986 s.423, and this was sufficiently iniquitous for public policy to require inspection (in C v C, below, Munby J commented at [42] that a set aside under MCA 1973 s.37 is an analogous situation and in neither circumstance will privilege attach to the transaction).


Mere suspicion is not sufficient

In C v C (Privilege) [2006] EWHC 336 (Fam), [2008] 1 FLR 115 the former matrimonial home was held by a Liechtenstein Anstalt (a form of corporate entity). A freezing order was made by Munby J (as he then was) on the grounds that the husband was about to use this entity to sell the property and potentially defeat the wife's claims. The wife then sought disclosure of the Anstalt's conveyancing file. 

Munby J cited at [44] Lord Wrenbury in O'Rourke v Derbyshire [1920] AC 581 that the applicant must have 'a prima facie case of fraud resting on solid grounds'. It was decided that the wife had not crossed the threshold. It was fatal to the wife's case (at [55]) that there was no express allegation of the required conduct, though elaborate pleadings are not required (see [61]).

His Lordship said at [59]:

"The wife has much reason to feel suspicious – indeed gravely suspicious….But mere surmise and conjecture, mere speculation and suspicion, even grave suspicion, are not enough."

And continued at [67]: "I think the power the court undoubtedly has to examine the documents should be exercised very sparingly."

It bears noting that this was a case about examination of documents, not the giving of evidence as to facts. It is also worth noting that the pressure to sell the matrimonial home in that case had, it turned out, come from the mortgagee.


Failure to make full and frank disclosure is significant

The judgment refers at [72] to another case where privilege had been set aside by Coleridge J: Kimber v Brookman Solicitors [2004] 2 FLR 221. Munby J's analysis of this case was that the decision turned on the husband's very serious litigation misconduct as set out by Coleridge J in that judgment at [10]:

"…the husband is 'cocking a snook' at the court… the husband has no intention of assisting in the process or complying with court orders or taking any part in the proceedings at all".

Continuing at [16]:

"…there is a clear duty in this type of proceedings, as set out in the rules, on both parties to make full, complete and frank disclosure to the court of their means. In this case the husband has failed to abide by the rules and also is in breach of orders of the court. He therefore forfeits, in my judgment, any entitlement in relation to retaining the usual cloak of privilege."

In that case the husband had instructed a solicitor in the jurisdiction for a short period and thereafter only used the solicitor's services as a letterbox intervening in the proceedings when it suited him.

Similar considerations applied in AAZ v BBZ [2016] EWHC 3349 (Fam), discussed above.


Limitations

In JSC BTA Bank v Solodchenko [2011] EWHC 2163 (Ch), there was an extant freezing order which required the defendant to disclose details of his assets. Henderson J refused to set aside privilege to permit an order for disclosure of those assets' whereabouts from the defendant's solicitors. It was noted at [46] that the defendant might need to seek the solicitors' advice in relation to the asset-freezing and disclosure order.

It is worth noting that Henderson J accepted at [44] that the court had jurisdiction to make the order sought. His Lordship merely declined, on the facts, to exercise it in relation to a very broad order for disclosure of all assets. It was noted at [47] that the order sought was so broad that the solicitors could not form a view about the extent of their obligation without taking instructions from the defendant or making use of privileged information already supplied to them.

Caution was expressed at [48] that such applications should not become standard practice.


Anti-tipping off orders

If a disclosure order had been made against the solicitors, it might have been necessary to make an anti-tipping off order, to prevent them informing their client/former client, and thereby minimise the risk of the assets being moved again before freezing or enforcement measures could be taken. This is what happened in AAZ v BBZ (above).

The anti-tipping off order made in AAZ v BBZ was upheld on appeal but the Court of Appeal said it should not have been made until further order (Kerman v Akhmedova [2018] EWCA Civ 307, [2018] 2 FLR 354 at [35]) – though this did not invalidate the injunction. 

This form of order is more commonly used in child abduction proceedings. As explained by Hughes J in Re H (Abduction: Whereabouts Order to Solicitors) [2000] 1 FLR 766 (which was cited in the Court of Appeal), it exists in part to protect the solicitors against whom disclosure is sought, and is therefore a point to which practitioners involved in similar situations will wish to turn their minds.

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