G v G

Legal advice privilege does not protect confidential conversations between friends merely because they concern possible legal problems or lead to contact with a lawyer. Protection requires a professional legal-adviser relationship, or an authorised agency relationship forming part of a communication for the purpose of obtaining legal advice. A lawyer’s provision of a recommendation, without accepting instructions or giving advice, does not create that relationship. Relevance alone does not require an injunction restraining the use of confidential material. The court may balance confidentiality against the need for a fair determination of the proceedings.

The former wife applied to prevent her former husband’s legal team from acting in financial remedy proceedings, to redact his evidence, and to restrain reliance on an email sent by the husband’s former leading counsel to a solicitor in September 2012. The email recorded that the wife might make contact concerning non-performance of a consent order and possible non-disclosure. The wife claimed legal advice privilege and confidentiality over the email and the conversations which preceded it. The former husband sought a declaration that the material was not privileged and could be used in evidence. The central issues were whether the conversations attracted legal advice privilege and whether injunctive relief was justified on privilege or confidentiality grounds.

1. Legal advice privilege. Legal professional privilege is an integral privilege comprising legal advice privilege and litigation privilege. Legal advice privilege protects communications made for the purpose of obtaining or giving legal advice within a professional legal-adviser relationship. The privilege belongs to the client.
2. The conversations between the wife and her friend were ordinary confidential conversations between friends. The evidence did not establish that the friend had been authorised to obtain legal advice from counsel, or to act as an agent of communication for that purpose. Those conversations therefore attracted no legal advice privilege.
3. The conversation between the friend and counsel was directed to obtaining a recommendation for a solicitor. Counsel made clear that she could not accept instructions directly and did not give legal advice. Her recommendation of a solicitor and subsequent warning email did not create a professional legal-adviser relationship with the wife or her friend. Minter v Priest did not assist because counsel had not invited the wife, as a prospective client, to provide information for advice.
4. The burden of establishing privilege lay on the wife. A party claiming privilege must provide sufficient detail to enable the court to assess the claim without disclosing the protected material. The wife’s evidence lacked sufficient particularity.
5. Relevance alone does not automatically determine whether confidential material should be admitted or restrained. The court retains an equitable discretion. Here, the wife’s state of knowledge in 2012 could be materially relevant to the husband’s case on delay in seeking to reopen the consent order. No overriding circumstance justified restraining use of the email or the information it contained.
6. The applications for injunctive relief were dismissed. No order was made requiring redaction of the husband’s witness statement. It was unnecessary to determine whether counsel should be restrained, since she had withdrawn. The email and related conversations could be adduced as evidence.