Balu v Dudley Primary Care Trust

Legal professional privilege may be waived objectively by conduct which is inconsistent with maintaining confidentiality. Where privileged documents are disclosed, included in a hearing bundle and used in evidence without timely objection, the privilege may be lost even if the original disclosure was mistaken. A party cannot ordinarily rely on privilege on a redetermination appeal after allowing the documents and related evidence to be used at the earlier hearing. Equitable relief is discretionary, and there are no rigid rules governing intervention after mistaken disclosure.

Mr Balu appealed against a decision of the Family Health Services Appeal Authority refusing to exclude three documents on grounds of legal advice privilege. The documents comprised retrospective notes concerning consultations with Mrs Walsh and a letter from the Medical Protection Society.

The documents had been disclosed to the Primary Care Trust, included in the bundle for a Professional List Panel hearing, and used in questioning and submissions without any assertion of privilege. The FHSAA treated any privilege as waived. The central issue before the Administrative Court was whether privilege had been waived or confidentiality lost, and whether waiver at the PLP hearing could be confined so as not to affect the FHSAA redetermination.

1. Assumption of original privilege. The court proceeded on the agreed basis that the documents had been privileged when created. The question whether privilege originally arose was therefore left undecided.
2. Objective waiver. The entry in the clinical notes merely signposted separately retained information and did not itself waive privilege. The later delivery of the documents to the practice manager was treated as naivety and did not, at that stage, establish an obvious mistake. However, at the PLP hearing the documents were included in the bundle, the August note was used in evidence by Mr Balu’s own counsel, and both notes were discussed in questioning and submissions. Viewed objectively, that conduct was inconsistent with maintaining confidentiality and amounted to waiver of privilege and loss of confidentiality in both notes.
3. Effect on the appeal hearing. Waiver could not be confined to the PLP hearing. The material witnesses and evidence were reasonably expected to be before the FHSAA on its redetermination. It would be unfair to test privileged evidence at the first hearing and then withdraw it on appeal. There was no remaining confidentiality between the parties sufficient to support a claim to privilege before the FHSAA.
4. Equitable relief. The principles summarised in Al-Fayed v The Commissioner of the Police for the Metropolis [2002] EWCA Civ 780 applied. The court’s equitable jurisdiction involved no rigid rules, and any application to restrain use of the documents would have been refused in the circumstances.
5. The appeal against the FHSAA ruling was dismissed. The appellant was ordered to pay the respondent’s costs, summarily assessed at £9,000, payable within 28 days. Permission to appeal was refused.

• Professional List Panel: determined that the allegations were proved to the required standard and directed Mr Balu’s removal from the performers list on grounds of unsuitability.
• Family Health Services Appeal Authority: on 2 December 2009 confirmed its ruling that the documents were not excluded on grounds of legal professional privilege.
• High Court (Administrative Court): dismissed the appeal against the FHSAA’s ruling and ordered the appellant to pay £9,000 costs.