The recent hearing of the phone hacking claims brought against Mirror Group Newspapers may not have been of enduring interest to readers of EG – but there was one piece of the courtroom drama that did touch on something of relevance to us.
This occurred when the former group head of legal at MGN, Marcus Partington, was being cross-examined about what he had discovered during the course of his research into the Metropolitan Police investigation into unlawful information gathering.
The cross-examination was interrupted by counsel for MGN, who objected that the witness was being asked about matters covered by litigation privilege, saying: “We are trespassing into what he did in his capacity as a solicitor.”
The judge, Mr Justice Fancourt, was having none of that. Rejecting the objection, he observed that Partington was merely being asked what he had discovered in police enquiries when, although he was working as a solicitor, he was not giving advice to his client.
The judge continued: “I am against you on this point. It seems [the examining barrister] is perfectly entitled to ask what [Mr Partington] did and what he found, what he saw. What he then instructed his client afterwards is, of course, privileged. That cannot be gone into. There is a clear line in principle between those two.”
This misunderstanding of the dividing line between privileged and open matters is remarkably common.
A brief refresher into the limits and bounds of the two categories of legal privilege (usually referred to as legal professional privilege and litigation privilege) seems timely.
Legal professional privilege
This category of privilege covers communications between a client and their legal adviser (and their agents) for the purpose of giving or obtaining legal advice for the client.
This privilege applies whether or not litigation or arbitration is anticipated or is actually in progress; it derives from the right of every citizen to be advised confidentially about their rights and liabilities.
What is often not appreciated is that this type of privilege is confined to legal advisers. There is no privilege protecting communications of a general nature between the lay client and their other professional advisers.
Accordingly, non-legal professional advice will not be privileged from disclosure unless it is taken in anticipation of litigation, under the second type of privilege explained below.
On this principle, a surveyor’s initial valuation made to enable their landlord client to decide whether to initiate a review may not be privileged. A valuation made in the process of and for the purpose of an acquisition or sale would not be privileged.
It may be questioned whether the privilege should be governed in this way by the formal status of the professional person involved (ie a solicitor or counsel rather than a surveyor).
It is arguable that it should rather be governed by the nature of the advice sought, regardless of the nominal profession of the giver of the advice.
As a matter of fact, many surveyors practising in property are fully competent to give legal advice on a wide variety of legal problems arising out of (for example) rent reviews, dilapidations disputes and rights of light claims, and do as a matter of practice give it.
This aspect of professional practice is a relatively new development, and the occasion for the courts to consider it has not yet arisen.
or the time being, clients and surveyors should assume that communications passing between them, where there is no intention that they should then be passed on to a solicitor or counsel at a time when no litigation or arbitration is anticipated or in progress, are not privileged, even though they are made for the purpose of obtaining or giving legal advice.
It should also be noted that legal professional privilege applies only if obtaining legal advice is the dominant purpose of the communication. If obtaining legal advice is only one of the purposes, and is not the dominant purpose, the communication will not be protected by the privilege.
Litigation privilege
If litigation is in progress or is contemplated, then all discussions, communications and other steps taken with the (again, dominant) purpose of assembling evidence for use by a legal adviser (whether solicitor or counsel) are privileged.
For this purpose, it does not matter between whom the communications took place.
Thus, correspondence and other communications between a client and a third party (such as a surveyor) will be privileged from disclosure, provided that litigation or arbitration is contemplated or pending, and the material was provided with the primary purpose of assisting in the preparation of the contemplated legal proceedings, but not otherwise.
Thus, as a general rule, an expert’s report provided for a client for the purposes of ongoing or contemplated litigation will be privileged.
By contrast, a valuation made for a proposed acquisition of a property will probably not be privileged.
By further contrast, advice given by the client’s solicitor commenting upon the valuation will be privileged even if the report is not, because this advice will attract legal professional privilege.
This explains why Partington could be cross-examined about his investigation but not his subsequent advice to MGN.
To bring the distinction closer to home, let us suppose that a landlord in a rent review dispute acquired its interest in the subject property shortly before the review, and obtained valuation advice concerning the property prior to its acquisition, including advice as to the likely outcome of the review.
The tenant may seek disclosure of the advice, suspecting that it may support a different figure to that contended for by the landlord, and will wish to undermine the landlord’s expert evidence by reference to that different figure.
If the valuation was commissioned by the landlord’s solicitor for the purpose of giving advice on the acquisition, or if it is sufficiently proximate to the review (and may therefore be said to have been prepared with a view to a likely dispute), then the valuation may be privileged under either category of privilege.
Guy Fetherstonhaugh KC and Toby Boncey are barristers at Falcon Chambers
