L (A Child)

Where an appellant relies on detailed evidence alleging failures by former solicitors, that conduct waives legal professional privilege in relation to the solicitors’ file. The starting point is disclosure of the whole file. The court should remove only material that is clearly irrelevant, disproportionately prejudicial, or insufficiently relevant to justify disclosure. Disclosure is not confined artificially to documents matching the precise wording of an appeal ground where the wider case makes the material relevant. This may include material concerning expert evidence, the appellant’s capacity to act in person, and advice about alternative representation.

The father appealed a county court determination concerning the future care and welfare of his child. In support of the appeal he relied on a detailed witness statement criticising his former solicitors and was permitted to rely on it as fresh evidence. The mother then applied for disclosure of the former solicitors’ file. The father accepted that legal professional privilege had been waived but argued that disclosure should be limited to documents connected with particular grounds of appeal. The application concerned the proper scope of disclosure and related communications with an expert psychiatrist.

Application granted. Lord Justice McFarlane made directions for disclosure before the full appeal hearing.

1. The father’s proposed reliance on detailed evidence about his discussions and dealings with his former solicitors waived legal professional privilege in relation to the previous solicitors’ file. The default position was that the entirety of the file should be disclosed. The court’s task was to remove material that was clearly irrelevant, disproportionately prejudicial, or insufficiently relevant to justify disclosure.
2. Documents concerning the failure to file an expert psychiatric report and the decision not to rely on it were disclosable. It was artificial to exclude them merely because no separate appeal ground expressly addressed the report. The father’s case relied on fresh material that might be relevant to a retrial of the child-welfare issues, and one ground specifically referred to the expert’s view that he was unfit to represent himself.
3. Documents concerning difficulties encountered by the former solicitors and their decision to cease acting were agreed to be disclosable. Advice about alternative representation was also relevant because part of the appeal alleged that the father had been left without representation and without an available alternative, even though that issue was unlikely by itself to determine the appeal.
4. Disclosure was to be completed by 4 pm on 24 January 2013, with additional appeal-bundle documents filed by 4 pm on 25 January. The father was also required to provide a short statement of his direct communications with the expert, excluding communications during the assessment interview.

1. Court of Appeal (Civil Division): on 22 January 2013, Lord Justice McFarlane granted the mother’s interlocutory application for disclosure and made consequential directions before the full appeal hearing.
2. Basingstoke County Court: Recorder Martineau had made the August 2012 determination concerning the child’s future care and welfare, which was the subject of the pending appeal.