Legal Professional Privilege

A recent case in the Technology and Construction Court considered whether documents generated by a claims consultant attracted legal professional privilege or whether they had to be disclosed to the other party in a litigation.

The case is Walter Lilly & Co v Giles Mackay & DMW Developments Limited, March 2012.

The facts

Lilly had been employed by DMW to construct a large house in London. There were delays, and claims for extension of time and loss and expense. Mr Mackay, who was to be the owner of the house when constructed, retained Knowles Limited to provide "contractual and adjudication advice".

The project ended up in litigation, in the course of which there was disclosure of documents by the parties. In the course of the disclosure exercise, it became apparent that certain of the documents prepared by Knowles had not been disclosed by Mr Mackay's solicitors.

The solicitors claimed that this was justified because the documents were subject to legal professional privilege and legal advice privilege. Legal professional privilege allows a party to a litigation not to disclose certain documents where these were produced as a result of the lawyer/client relationship. It includes legal advice privilege, which protects advice given by lawyers to clients.

The solicitors claimed that where a person in good faith instructs an organisation or person which they mistakenly believe is a qualified solicitor or barrister. and then receives legal advice from that person, the instructing party is entitled to the privilege protection.

Mr Mackay's principal contact at Knowles provided legal advice and Mr Mackay understood that Knowles were therefore legal advisors.

The decision

The judge reviewed previous cases on this issue. The principle he established was that the privileges were confined to qualified members of the legal profession.

He also considered the factual position. Knowles' appointment was for "contractual and adjudication advice" and not for legal advice. Their standard terms allowed for solicitors to be retained separately. The rates quoted did not include for a barrister or a solicitor. On this basis, the judge considered Knowles were not...