Legal privilege — Oral agreement alleged for the grant of a new lease — Agreement denied — Evidence of a section 40 memorandum or note sought — Discovery of communications between client and solicitors — Whether legal privilege extends to all communications between client and solicitor — Whether legal privilege restricted to communications seeking or giving advice
The appellant is the owner of a lease of premises in Mayfair and the respondents hold an underlease. Negotiations were said to have taken place between the parties for the grant to the respondents of a new underlease, and the respondents alleged that an oral agreement was reached in May or November 1984. The respondents sought specific performance of the oral agreement. Bearing in mind the requirements of section 40 of the Law of Property Act 1925, and the need to provide “some memorandum or note … in writing, and signed by the party to be charged or some other person thereunto by him lawfully authorised”, the respondents requested discovery of any relevant communications between the appellant and its solicitors.
The appellant claimed that such communications were the subject of legal privilege and need not be disclosed. Judge Baker (January 28 1988) ruled that legal privilege protected all communications which sought or conveyed advice, but that any documents which simply recorded information or transactions were not privileged and must be disclosed.
Held The principle justifying legal professional privilege arises from the public interest requiring full and frank exchange of confidence between solicitor and client to enable the client to receive the necessary advice. Although originally confined to advice regarding litigation, the privilege has been extended to non-litigious business. Despite that extension the purpose and scope of the privilege is still to enable legal advice to be sought and given in confidence. The test is whether the communication or other document was made confidentially for the purposes of legal advice, and those purposes have to be construed widely. Advice is not confined to telling the client the law, it does include advice as to what should prudently be done in the relevant legal context.
Most communications between a client and solicitor in a conveyancing transaction are likely to be privileged and non-discoverable. But a letter from a client to his solicitor informing the latter that he had sold some property would not be written in the context of requiring or giving legal advice; it would not be protected by legal privilege: Smith-Bird v Blower [1939] 2 All ER 206.
Minter v Priest
[1929] 1 KB 655 CA and [1930] AC 558 HL considered.
Gavin Lightman QC and Beverley Ann Rogers (instructed by Hobson Audley & Co) appeared for the appellant; and Michael Burton QC and Ian McCulloch (instructed by Howard Kennedy) appeared for the respondents.
