Bruzas v Saxton

Where material which is prima facie protected by legal professional privilege is deliberately disclosed by an employee of a solicitor’s firm to the court, and then supplied by the court to the parties, the court may need to determine whether it is admissible. The issue is distinct from inadvertent disclosure. The court should not determine such a serious and developing question without the relevant judgments, a formal application, adequate legal submissions and the complete hearing transcript where disputed judicial statements are material. A case raising novel issues about privilege and alleged fraud may properly be listed before the President of the Family Division.

The parties were formerly married. A financial remedies consent order made in 2014 provided for capital redistribution and instalments of a lump sum on a clean-break basis. The applicant’s later application to set aside that order was dismissed by Parker J in December 2017.

In January 2018, a former paralegal employed by the respondent’s former solicitors sent Parker J material apparently recording privileged communications and alleging malpractice. Parker J supplied the material to both parties. The applicant prepared, but had not issued, an application seeking to overturn the December judgment. The issue before Holman J was confined to the future conduct of the matter, including the procedure for determining the material’s admissibility.

1. Directions only. Holman J declined to determine the admissibility or legal professional privilege issues substantively. The relevant judgments of Parker J were unavailable, the legal framework was complex and developing, the disputed material might need to be read before admissibility could be decided, and no formal application was yet before the court.
2. The applicant undertook to issue and pay the required fee for her Form N244 application by 4.00 p.m. on 29 June 2018 and to serve the sealed application on the respondent’s current solicitors. The further directions were conditional upon those steps being completed.
3. Once issued and served, the matter was to be listed before the President of the Family Division in Michaelmas Term 2018. The outstanding judgments of Parker J and an official transcript of the hearing on 22 February 2018 were to be obtained.
4. The respondent’s counsel was directed to file and serve a detailed skeleton argument and bundle of authorities addressing the circumstances, if any, in which legal professional privilege may be breached and whether, and in what circumstances, the court should inspect the disputed documents.
5. The judge provisionally identified a significant distinction between inadvertent disclosure of privileged material and deliberate disclosure by an employee of a solicitor’s firm to the court. He also recorded his provisional understanding that privilege cannot ultimately withstand the unravelling of fraud or similar malpractice if such conduct is established, but made no final ruling on that issue.

The judgment describes prior proceedings before Parker J, including dismissal in December 2017 of the applicant’s application to set aside the 2014 consent order and a further hearing on 22 February 2018 concerning the disclosed material. This was not an appeal from those decisions. Holman J gave directions only and directed that the matter be listed before the President of the Family Division.