Technology and Construction Court, March 2012
Giles Mackay retained claims consultant Knowles to provide various services relating to an adjudication on a delayed housing project.
As the claim proceeded to litigation, Walter Lilly, the contractor, requested that correspondence between Giles Mackay and Knowles be disclosed.
Giles Mackay’s primary argument was that, in good faith, he instructed Knowles in the mistaken belief that the person providing the advice was a qualified solicitor or barrister and on that basis he should be entitled to the legal advice privilege protection on the documents requested by Walter Lilly.
When determining this issue, Mr Justice Akenhead considered the engagement letter between Knowles and Giles Mackay. Knowles’ appointment document stated that it would provide “contractual and adjudication advice” using, amongst others, “Legally Qualified Person[s]”. The appointment also stated that solicitors would be retained if required. At no point in the engagement letter did Knowles assert that it was a lawyer itself.
On the evidence, Justice Akenhead found it was “immaterial” that Giles Mackay honestly understood the two gentlemen (whom were providing the advice from Knowles) were qualified and practising barristers or solicitors. The key issue was their employer was not retained to provide the services of barristers or solicitors.
The judge found that legal advice privilege can only arise between a lawyer (ie a practising solicitor or barrister) and their client, and that all correspondence between Giles Mackay and Knowles should therefore be disclosed.
Justice Akenhead did go on to make an important exception in that his decision did “not deal with litigation privilege and there remains an outstanding possible issue as to whether or not advice and other communications given by claims consultants in connection with adjudication are privileged”.
There are two categories of privilege: legal advice privilege, and litigation privilege.
The Walter Lilly case confirms the common law position that legal advice privilege will apply only to advice given by practising solicitors and barristers and not, for example, non-practising solicitors and barristers. The more interesting point thrown up is whether litigation privilege will apply to claims consultants’ advice and communications in connection with adjudication.
For litigation privilege to apply, the test is not whether the person giving the advice is a qualified and practising lawyer or barrister, but whether:
a) the advice or communication has been prepared in anticipation of litigation;
b) the dominant or sole cause for creating the document is to use it, or its contents, to assist in the conduct of the pending litigation;
c) the litigation is adversarial, not investigative or inquisitorial.
So, for adjudication, the question is: is it sufficiently adversarial for litigation privilege to apply? In my view, it is. It is unlikely that a court would determine that adjudication proceedings are investigative or inquisitorial, such as with child care proceedings, where litigation privilege has been found not to apply because it was not regarded as sufficiently adversarial as the child was the focus rather than any issues between the parents. Further, a recent OFT tribunal (to my mind comparable to adjudication) has been confirmed as being “sufficiently adversarial” for litigation privilege to apply.
Finally, overriding policy issues, in my view, are likely to tip the balance in favour of litigation privilege applying to adjudication.
The line between legal advice and general claims advice can, I imagine, be very blurred at times, but the door on litigation privilege is still open — until we hear further from the courts.
Joanne Kelly is a partner in the construction and engineering group at Taylor Wessing. Email: firstname.lastname@example.org