D (A Child)

Legal professional privilege in care proceedings belongs to the client, but it may be waived objectively by the client’s own evidence. A statement that discloses only that legal advice was received will not ordinarily require wider disclosure. The position differs where the evidence reveals the nature of the advice and how questioning or other assistance elicited a new account. In that event, fairness may require disclosure of relevant legal attendance notes if withholding them would leave the court or the opposing party with a partial or misleading understanding. The court must balance confidentiality against effective testing of the evidence. A first-instance assessment of that balance attracts appellate restraint unless plainly wrong.

The appeal arose from care proceedings concerning a baby who had sustained multiple fractures. The mother initially said that she did not know how the injuries had occurred, but later made a substantially different allegation against the father. In explaining the change, she described advice from her solicitor and counsel, conferences, questioning and assistance in preparing her new statement.

The father sought disclosure of contemporaneous notes of the legal meetings. His Honour Judge Barnett held that the mother had waived legal professional privilege and ordered disclosure of the relevant notes. The central issue on appeal was whether waiver had occurred and whether fairness required disclosure despite the particular features of care proceedings.

1. Appeal dismissed. Lord Justice Ward gave the judgment of the court. Lord Justices Rimer and Elias agreed.
2. Legal professional privilege attached to the mother’s meetings with her solicitor and conferences with counsel. It was a substantive right belonging to her and could be waived only by her. Objectively construed, her statement went beyond a glancing reference to legal advice. It disclosed the nature of the advice and how questioning, demonstrations and assurances from her legal team assisted in eliciting the new account. The waiver was effective even though the solicitor drafted the statement and neither the mother nor her advisers appreciated the consequence.
3. The governing question was whether, in light of what had been disclosed and the context, it would be unfair to withhold the whole relevant information because the court and the opposing party might otherwise have only a partial or misleading understanding. The formulation in Brennan v Sunderland Council [2009] I.C.R. 479 at [63] was applied.
4. The judge was entitled to balance the importance of confidentiality against the father’s ability to test the mother’s reliability and the evolution of her account. Her explanation of the change by reference to legal advice created a legitimate concern that she might have said what she believed her lawyers wished to hear. Disclosure of the relevant contemporaneous notes was therefore required. The judge had understood the legal principles and the special context of care proceedings, and his assessment was not plainly wrong.
5. A bare statement that a party is acting on advice will not ordinarily justify disclosure of the advice or the circumstances in which evidence was drafted. Lawyers should guard against inadvertent waiver, and judges should warn witnesses where an observation may waive privilege. On the facts, however, fairness demanded full disclosure.

1. Court of Appeal (Civil Division): dismissed the appeal and upheld the order requiring disclosure of the relevant contemporaneous notes.
2. Chester County Court: His Honour Judge Barnett held that the mother had waived legal professional privilege and ordered disclosure of notes made by counsel and the solicitor during the relevant period. Permission to appeal was granted.