Kelly, R (on the application of) v Warley Magistrates Court & Anor

An unconditional order requiring a defendant to disclose the identity and personal details of prospective witnesses infringes litigation privilege and may also infringe legal professional privilege. Such privilege may be overridden by subordinate legislation only where the enabling primary legislation does so expressly or by necessary implication. A procedural rule may regulate the use of privileged material without overriding privilege where it forms part of a case-management code and imposes proportionate procedural consequences for non-compliance. An open-ended power, or an unconditional disclosure order without specified consequences, is not merely procedural. The order is unlawful, or otherwise no more than a request, and should be quashed.

The claimant faced trial at Warley Magistrates Court on a charge of criminal damage. At a pre-trial review, the court directed the defence to provide the prosecution with the names, addresses and dates of birth of all proposed defence witnesses. The direction was reaffirmed when the claimant failed to comply.

The claimant sought judicial review, arguing that the direction required disclosure of material protected by litigation privilege and legal professional privilege, and that the Criminal Procedure Rules 2005 did not authorise such an intrusion. The central issue was whether the magistrates court had legal power to make and enforce the direction.

1. The claim succeeded. The direction requiring disclosure of the names, addresses and dates of birth of prospective defence witnesses was quashed.
2. The identity and other details of witnesses intended to be called in adversarial litigation fall within litigation privilege, whether or not they are identified through legal advice. On the facts, the material also fell within legal professional privilege.
3. Litigation privilege and legal professional privilege are fundamental rights. Subordinate legislation can override them only if the enabling primary legislation does so by express words or necessary implication. The general case-management language in Part 3.5(1) and Part 3.10 of the Criminal Procedure Rules 2005, read with the overriding objective, did not satisfy that requirement. Section 69 of the Courts Act 2003 contained no such authority.
4. A procedural rule may regulate the use of privileged material without overriding privilege where it forms part of a code directed to regulating the adducing of evidence and provides proportionate procedural sanctions. The distinction recognised in Comfort Hotels Ltd is between a condition on relying on evidence and an unconditional compulsion to disclose material, whether or not the party intends to use it.
5. An open-ended power to require disclosure, unsupported by moderate or proportionate consequences, is likely to be an attempt to infringe privilege itself. An unconditional order, or a regime absolutely prohibiting reliance on an undisclosed witness, would exceed what is reasonably required for procedural regulation and would require primary legislative authority.
6. The direction was unconditional and specified no consequences for non-compliance. It therefore could not be justified as an exercise of case management within a limited procedural code. It was either unlawful for want of statutory authority or merely a request lacking operative effect.

The judgment describes a judicial review of the direction made by the Deputy District Judge at Warley Magistrates Court. Permission for judicial review was granted by Forbes J on 1 February 2007. The Administrative Court quashed the direction.