As the saying goes, you don't have to be posh to be privileged, but it may help if you are a practising qualified solicitor or barrister.

It is often said that litigation in the Courts of England and Wales is conducted 'cards on the table'. This means that parties to litigation have an obligation to disclose to the other side, at the appropriate point in time, all the evidence it holds which either assists its own case or assists the other side's case. There are some exceptions to this, though.

One of these is called legal professional privilege. Legal professional privilege reflects the commonsense principle that a party should be able to consult with its solicitor or barrister without fear of the content of that consultation being exposed through disclosure. Without legal professional privilege, nobody would ever be straight with their lawyer for fear of the information being used against them in any litigation that followed.  Often however, in the industry, contract or litigation advice is given by non-solicitors or non-barristers such as claims consultants or surveyors.

The recent case of Walter Lilly & Co–v- Mackay and DMW Developments [2012] EWHC 649 (TCC) highlights the consequences of assuming that legal professional privilege applies where the advice comes from a non-lawyer - you may end up having to disclose more than you would like.

DMW Developments employed Walter Lilly & Co to build a substantial house on behalf of Mr and Mrs MacKay. As is often the case, there were complications and there were significant delays to completion of the construction of the house and Walter Lilly & Co sought extensions of time and claims for loss and expense.

Unhappy with progress, Mr and Mrs MacKay sought the assistance of Knowles, a well known claims consultant. Knowles agreed to provide "contractual and adjudication advice", advice which might equally have been provided by a lawyer.

Knowles provides rates for personnel, including services provided by an "Advocate/Director/Legally Qualified Person [and] Adjudication Manager/Delay Analyst/Expert Witness".

To cut a long story short, in subsequent litigation, Walter Lilly sought disclosure of correspondence, containing legal advice, between Knowles and Mr MacKay. Mr MacKay refused to provide the disclosure sought on the basis that such correspondence was subject to legal professional privilege. Mr MacKay pointed out that the legal advice he received from Knowles was provided by people holding themselves out as lawyers.

Walter Lilly disagreed and applied to the Court for the matter to be decided.

Reviewing the authorities, Mr Justice Akenhead decided that the correspondence was not protected by legal professional privilege on the basis that:

  1. Knowles was not retained to provide legal advice; but rather to provide "contractual and adjudication advice". Indeed, Knowles had, in fact, provided advice relating to matters which did not constitute legal advice in any event.
  2. Knowles had not held itself out as a firm of solicitors or barristers.
  3. Furthermore, it was irrelevant that the advice provided by Knowles came from two people who appeared to be practising barristers because there was no evidence that either was entitled to practise at the time the advice was given.
  4. Finally, the fact that Mr Mackay "honestly believed" the advisors were solicitors or barristers was irrelevant – Knowles had not been engaged to provide the services of a solicitor or barrister.

Whilst this may seem quite a harsh decision, it reflects the general attitude of the Court to legal professional privilege, specifically, that legal professional privilege should be confined to advice given by solicitors and counsel, professionally qualified, entitled to practice and who have been retained as such.

The risk, by allowing any relaxation of this rule is that legal professional privilege arguments could potentially arise in situations were a party, during a consultation about a skin rash, asked his GP (albeit perhaps a GP with an interest in law!) for legal advice.

Although this is an extreme example, the Court correctly takes the view that without a robust rule, more serious questions about the scope and application of legal professional privilege would certainly need answers, eg what kinds of professional advisors would be covered? And in what context would it apply? Would it apply to specific areas of law?

Accordingly, in a construction context, where the appointment of claims consultants or quantity surveyors is commonplace to give contractual advice, it is important for a party to properly consider the issue of legal professional privilege because it would seem that issues of litigation privilege aside (something distinct from legal professional privilege and which was not addressed in Walter Lilly), any correspondence, advice, or documentation of any sort generated by the appointment of a claims consultant may well be disclosable to the opponent.

So, you don't have to be posh to be privileged, but it may help if you are a practising qualified solicitor or barrister!

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.