LFEPA v Halcrow Gilbert & Co Ltd

Litigation privilege attaches to a document prepared by a third party only where litigation is reasonably in prospect and the dominant purpose of its preparation is to obtain legal advice or evidence for that litigation. A subsidiary litigation purpose is insufficient where the immediate purpose is an audit or investigation undertaken for wider business, administrative or public-accountability reasons. Legal advice privilege is confined to communications between client and legal adviser. A party may lose privilege where it deliberately misleads the opposing party about the purpose for which information is sought and obtains evidence in reliance on that representation. Disclosure of part of a document does not necessarily waive privilege in the remainder if the disclosed material can be severed.

The London Fire and Emergency Planning Authority sought specific disclosure of a report prepared by Mr Pickavance concerning substantial delay and cost overruns on a fire-house construction project managed by Halcrow Gilbert & Co Ltd. The Authority claimed litigation privilege, asserting that the report had been prepared for contemplated claims against Halcrow and contractors. Halcrow argued that the dominant purpose was a project audit required by elected members, and alternatively that privilege had been lost through misleading representations and disclosure of interview material.

The central issues were the dominant purpose of the report, the effect of the Authority’s communications with Halcrow, and whether the interviews could be severed from the report for waiver purposes.

The application for disclosure of the Pickavance report was allowed. Consideration of the associated working documents was premature.

1. Legal advice and litigation privilege. Legal advice privilege arises only for legal advice given by a legal adviser to the client. Litigation privilege is wider and may cover documents prepared by third parties, but only where the dominant purpose is obtaining advice in relation to actual or contemplated litigation. Litigation may be reasonably in prospect where documents are prepared to enable solicitors to advise whether a claim should be made or resisted.
2. Dominant purpose. The court applied the approach in Waugh v British Railways Board, holding that the immediate purpose of the enquiry was to investigate the causes of delay and increased cost, report to elected members, and assist decisions about continuation of the project. The possible use of the report in later litigation was a more distant purpose and did not satisfy the dominant-purpose test.
3. Misleading representations. A party need not ordinarily warn another that litigation is contemplated. However, if it deliberately misleads the other party about the purpose for which information is required, and obtains evidence in reliance on that representation, it cannot thereafter maintain litigation privilege in respect of the resulting material. On the alternative hypothesis that the report was privileged, the Authority would have been estopped from asserting privilege, or would have waived it.
4. Severance and waiver. Disclosure of interview tapes did not necessarily waive privilege in a subsequent report. The relevant question is whether the disclosed material can be severed from the privileged material. The court tentatively accepted that interviews might be disclosed while a separately privileged report remained confidential.
5. The report was therefore ordered to be disclosed. The question of disclosure of the working documents was left until a later stage.