C v C (Privilege: Criminal Communications)

Legal professional privilege protects confidential communications made for the purpose of obtaining legal advice. It does not extend to every communication between solicitor and client merely because it concerns a solicitor’s ordinary business. Communications aimed at negotiating fees or pressing for completion of conveyancing work fall outside the privilege where their object is not legal advice. In addition, communications that are criminal in themselves, or intended to further a criminal purpose, are excluded from the privilege. Menacing and grossly offensive telephone communications may therefore be admitted in related family proceedings where they are relevant to the assessment of risk and behaviour.

The appeal arose from contact proceedings in the Family Division concerning allegations of violent and abusive behaviour by the father. The mother sought to rely on an affidavit made by the father’s former solicitor, recording threatening and abusive telephone communications. Johnson J ordered that the affidavit be sealed and that it not be used in the contact proceedings.

The Court of Appeal considered whether the communications were protected by legal professional privilege and, if so, whether their criminal character removed that protection.

Appeal allowed with costs here and below.

1. Legal professional privilege is directed to confidential communications made for the purposes of legal advice. The privilege extends beyond communications expressly requesting or conveying advice and may cover the continuing exchange of information within a solicitor-client relationship. However, it does not extend without limit to all communications concerning the ordinary business of a solicitor. The governing approach was drawn from Balabel v Air India [1988] 1 Ch 317.

2. The communications in question were not made for the purpose of obtaining appropriate legal advice. One conversation concerned the price of conveyancing work and the others sought to press the solicitors to complete that work. Those purposes were commercial and operational, rather than legally advisory.

3. Independently, communications criminal in themselves or intended to further a criminal purpose fall outside legal professional privilege. The Court applied the principle stated in R v Cox and Railton [1884] QBD 153. The words about ripping a person’s throat out were capable of amounting to a threat to kill under section 16 of the Offences against the Person Act 1861. The communications were also capable of falling within section 43(1)(a) of the Telecommunications and Broadcasting Act 1984, concerning grossly offensive, indecent, obscene or menacing messages sent through a public telecommunications system.

4. The criminal-communication exception was sufficiently specific and did not undermine the general importance of legal professional privilege. The affidavit was relevant to the family court’s assessment of the father’s behaviour and to the Official Solicitor’s protective function. It should therefore have been admitted.

• Court of Appeal: allowed the appeal from the order of Johnson J in the Family Division and ordered that the affidavit could be admitted. Costs were awarded here and below.