The Queen re Stewart Ford v (Def) The FSA and (Interested Parties) Peter Johnson and Mark Owen

Joint Privilege

[2011] EWHC 2583 (Admin) TEDR Volume 16 Issue 3

The Facts

The Claimants and the interested parties were trying to assert joint interest legal privilege over various e-mails sent to them by their solicitor between February and June 2008. The case concerned legal advice privilege only. The Claimant and Mr Owen (one of the interested parties) were directors of Key Data Investment Services and Mr Johnson was its Compliance Officer. For convenience they were referred to in the Judgement as the “Executives”. They had retained a solicitor on behalf of Key Data to advise in connection with an investigation by the FSA. There was no doubt that the legal advice provided by the solicitor was privileged in the hands of Key Data. Key Data went into administration. The FSA were subsequently provided with e-mails and various attachments by the administrators of Key Data who waived the company’s privilege to those documents. The FSA had relied upon the contents of those e-mails and attachments in the formal investigation reports and warning notices served on the executives pursuant to the Statutory Regulatory Scheme. The administrators explicitly did not, indeed could not, waive any privilege in the documents attaching to the executives.

Various documents were attached to the E-mails and Advices given by the solicitors at the time. The E-mails which had simply forwarded documents from a third party (namely an accountant) had been headed “subject to legal professional privilege” but the argument that they were privileged was not seriously pursued. It was reiterated that the concept of legal professional privilege only applied to communications with a member of the relevant legal profession.

Once the FSA had the documents they apparently realised that some of them were subject to legal professional privilege. They raised the matter with the administrators of Key Data only. It was only when a report was sent to the executives that they realised that material that they claimed was privileged had been in the possession of the FSA.

The Issues

In what circumstances could legal professional privilege be said to be jointly held?

The Decision

Both the Claimant and the Defendant started their submissions from the premise that when two or more legal persons jointly retain the same lawyer, joint interest privilege can arise. Secondly, even when there is no joint retainer the parties have a joint interest in the subject matter of the communication in issue at the time that it comes into existence. It was agreed that only the second aspect was in play in this case because the original retainer letter was with Key Data only. The Judge gave a useful summary of the various authorities from different jurisdictions. Then he referred to the leading authority namely Three Rivers District Council and Others v Bank of England (No. 6) which, in summary, set out that it was clear that for legal advice privilege to be established the person claiming privilege must have the relationship of client with the lawyer concerned. The communications claimed as privilege must be confidential; the question of privilege must be determined by reference to the circumstances which obtained at the time of the communication; assuming the relationship to be confidential, the question is whether the person concerned was the client of the lawyer at the time; if the relationship of lawyer and client is established, the legal advice given will be privileged and inviolate from disclosure in the absence of waiver, or attenuation by statute; the common law of England recognises no balancing exercise of competing public interests in the determination of whether such communications remain privileged.

Mr Justice Burnett said,

“The same principles apply to joint legal privilege but because the interests of persons other than the individual claiming privilege are in play their position must be taken into account when determining whether the joint privilege exists. I do not accept that the test whether the individual concerned “reasonably believed” that he was the client of the lawyer provides a satisfactory test for joint interest privilege. It begs too many questions. Is it to be judged subjectively or objectively? And what are the factors which must be established before belief can be reasonable? Does the belief have to be shared by the others entitled to joint privilege and by the lawyers?”

The Learned Judge went on to say that of course it would be good practice for the retainer letter to set out who the client was and, if the client changed during the course of proceedings, for a fresh letter to be written. However, in default, the relevant facts would need to be demonstrated in order to show there was a sharing of privilege. His Lordship continued, “for joint privilege to arise it is necessary for the facts to demonstrate that all those sharing a privilege and the lawyers concerned knew, or from the objective evidence ought to have known, that they enjoyed legal professional privilege with the others. Evidence of an understanding by the lawyer of potential conflicts of interest may provide some evidential support for joint privilege, but it is not a necessary ingredient. It is not unknown for conflicts of interest to arise but those advising to be slow to appreciate their significance. In my judgment, apart from those cases in which there is no legal distinction between those claiming joint privilege[,] …. an individual claiming joint privilege with others in a communication with a lawyer, when there is no joint retainer, will need to establish the following facts by evidence:-

i) That he communicated with the lawyer for the purpose of seeking advice in an individual capacity;

ii) That he made clear to the lawyer that he was seeking legal advice in an individual capacity, rather than only as a representative of a corporate body;

iii) That those with whom the joint privilege was claimed knew or ought to have appreciated the legal position;

iv) That the lawyer knew or ought to have appreciated that he was communicating with the individual in that individual capacity;

v) That the communication with the lawyer was confidential. The conclusion in this case was that on the evidence there was joint legal advice privilege in the two communications and therefore the FSA could not rely upon those communications in regulatory proceedings against Key Data or the executives.


Accordingly, if the letter of retainer does not make it clear there must be an investigation as to the factual matrix surrounding the issue. What is clear however is that a lawyer cannot cloak the report of, say, an expert with legal professional privilege simply because the lawyer is the person who sends the document or expert’s report out to the client.

Edwards-Tubb v JD Wetherspoon Plc

Disclosure of an Expert’s report obtained during the pre-action protocol period

[2011] EWCA Civ 136 TEDR Volume 16 Issue 1

The Facts

During the pre-action protocol period in a personal injury action the Claimant had nominated three experts upon which he sought to rely. One of those experts was instructed but the Claimant did not wish to place any reliance upon his report. Accordingly, the Claimant wished to place reliance on a further expert in the same discipline but not one that had been proposed pre-action. When proceedings were issued, the Particulars of Claim were served with the report of the second expert. The Claimant was required to seek permission from the Court to place reliance upon the second expert. The Defendant sought disclosure of the report of the first expert as a condition precedent of permission being given. Pursuant to the CPR if a report is disclosed within proceedings any party is be entitled to use it. Overall the Court considered whether such a conditional order could be made.


Can it be a condition of permission for an expert’s report that a previous report be disclosed?


Overall, the Court considered that such a conditional order could be made. Previous case law suggested that such an order could be made where a report had been obtained post proceedings but this case considered the pre-action period. There is, however still a distinction with a report that is obtained purely for the purposes of a party being advised by an expert prior to the pre-action protocol period being engaged. Overall, whilst the Court cannot force disclosure, what the Court is doing with such a conditional order is making it a condition that either the Claimant waive privilege to the original report (which remains privileged to him) in order to secure permission for a further report or the Claimant does not waive privilege and matters rest there.


Whilst there are interesting legal issues which arise to do with privilege, the point for experts to bear in mind arising out of this case is that an expert should be careful to clarify what he or she is being asked to do. Is he or she being asked to advise for the purposes of the pre-proceedings stage or is it a report to be used in Court? That makes a difference not only as to whether the report can remain privileged regardless of this case but also is important as to whether the CPR and the Part 35 duties of experts apply.

Meat Corporation Of Namibia Limited v Dawn Meats (UK) Limited

The independence of an Expert

[2011] EWHC 474 (Ch) TEDR Volume: 16 Issue: 1

The Facts

This involved an application by the Claimant, Meat Co against the Defendant, Dawn, to oppose an application by the Defendant to call a new expert witness. They wished permission to be refused on the basis that proposed expert was in possession of confidential and privileged information concerning the Claimant which they said prevented her from acting or continuing to act for the Defendant and because they said she lacked the necessary independence of an expert. It was agreed that the expert was a retired meat trader and had the appropriate qualifications to be a suitable expert in the case. That was doubly so given that both sides had tried to instruct her in the matter. The Claimant tried first followed by the Defendant. The Claimant’s managing director (who used to work for the Defendant) had contacted the expert in May 2010. A conversation took place between the pair and, at the time, she said she was expecting to hear from the Defendant with a view to engagement as a consultant. There were also several e-mails between the pair. Full details of the information shared between them were not made available within the Judgement but made available to the Judge to assist him in making his decision.


1. Did the fact the proposed expert possessed privileged and confidential information about the other party disqualify her from acting as an expert?

2. Did the proposed Expert lack independence?

The Decision

Privilege and confidentiality

It was not contested that the expert had been given some privileged and confidential information. However, His Lordship did not agree with the Claimant that the expert ought to be treated in the same way as perhaps a solicitor and client would be treated if there had been a previous engagement that had Lordship’s conclusion was that the expert had only received the information in the course of enquiries as to whether she would “that does not rob it of its confidential quality, but it does mean that the relationship between her and Meat Co is very different from that of an engaged solicitor and his client”. He observed that to some extent the information had been forced upon her and whilst she could have refused to receive the information it was not appropriate to equate her with the sort of relationship of a solicitor and client. Overall His Lordship considered that, whilst confidentiality and privilege must be maintained, an undertaking by the expert she would maintain privilege and confidentiality would be sufficient. Overall His Lordship did not think that her deciding to act for the Defendant meant that she would betray confidences she had received and that it was a matter for her to decide what to do.

Further, having reviewed the e-mails and privileged information he considered that much of it would be uninteresting to the Defendant in any event and, as observed above, the undertaking would prevent her disclosing it.

Overall whilst previous cases have suggested that the practical approach was for the expert to refuse to act for both sides thus leaving the solicitors with the sensible course of action of seeking alternative experts, that did not automatically follow and the expert was not automatically disqualified. Overall therefore Mr Justice Mann considered that the expert was not disqualified from acting as an expert by virtue of her receipt of privileged and confidential information in this particular case.

Lack of independence

The second limb of objection was that the expert lacked the necessary independence. The Court set out the principles which were conveniently set out by Mr. Justice Nelson in Armchair Passenger Transport Limited v Helical Bar PLC [2003] EWHC 367 as follows:

i) It is always desirable that experts should have no actual or apparent interest in the outcome of proceedings.

ii) The existence of such an interest, whether as an employee of the parties or otherwise, does not automatically render the evidence of that proposed expert inadmissible. It is the nature and extent of the interest or connection that matters, not the mere fact of the interest or connection.

iii) Where the expert has an interest of one kind or another in the outcome of the case, the question of whether he should be permitted to give evidence should be determined as soon as possible in the course of case management.

iv) The decision as to whether an expert should be permitted to give evidence in such circumstances is a matter of fact and degree. The test of apparent bias is not relevant to the question of whether or not an expert should be permitted to give evidence.

v) The questions which have to be determined [are] whether (i) that the person has expertise; and (ii) he or she is aware of their primary duty to the Court if they give expert evidence and willing and able despite the interest or connection with the litigation or party thereto, to carry out that duty.

vi) The judge will have to weigh the alternative choices openly if the expert’s evidence is excluded, having regard to the overriding objective of the CPR.

vii) If the expert has an interest which is not sufficient to preclude him from giving evidence the interest may nevertheless affect the weight of his evidence.

His Lordship also applied one qualification of his own in that he was of the view that sometimes it would not be possible to determine with any clarity whether there was any disqualifying connection between the expert and the party at an interlocutory stage. Whilst of course it is desirable to do so, he would not rule out the prospect of having to decide the point at trial if necessary. Overall, the conclusion is that whether or not an expert is disqualified by reason of a connection with a party will depend upon the facts of the case and not on a single issue such as whether there is some contractual relationship between the two. The status of being an employee does not automatically disqualify a person acting as an expert and therefore it is difficult to see why the status of a consultant with limited functions would either.


Clearly, issues such as the above can be raised by the legal representatives at the interlocutory stage in the case. However, they are also issues that can be raised in cross examination during the trial for determination then. It may therefore be thought by experts that, professionally, they wish to decline instructions on the basis that there may be a conflict of interest or that it may result in difficult cross examination at trial even if ultimately there is no such conflict.

Axa Seguros, SA de CV v Allianz Insurance Plc And Others

Privilege and Expert reports

[2011] EWHC 268 (Comm), [2011] Lloyd’s Rep IR 544 TEDR Volume: 16 Issue: 1

The Facts

The Defendants claim litigation privilege over various pieces of material that were obtained and prepared pre-proceedings. The law was not seriously in dispute but was helpfully reiterated.


When is a pre-action report privileged?

The Decision

The law was re-affirmed as follows:

For a document to be protected by litigation privilege two conditions had to be satisfied. Firstly, at the time the document in question was created, litigation must be reasonably in prospect and not a mere possibility. It was not sufficient for there to be a distinct possibility of litigation in the future or a fear that future litigation would follow. However it was re-affirmed that it was not necessary to show that there was a greater than 50% chance of litigation.

Secondly, the document in question must have been made either with the sole or at least the primary purpose of using it for advice about actual or anticipated litigation.

Clearly, an Affidavit which explains the purposes of the document was instructive but was not conclusive if it appeared from the document itself that the characterisation of it was misconceived. The Court was at liberty to consider all the evidence as to whether or not a document fell within the description above.


Accordingly, it is important for an expert advising a party to confirm on what basis that advice is to be given and to reflect the same in the document where there is an issue. The instructions and/or the document itself can be viewed with a view to the Court deciding whether or not litigation privilege attaches and therefore care should be taken when acting as an expert in such a role.

Aird and Aird v Prime Meridian Limited

The confused case of the meeting of experts and mediation

[2006] EWHC 2338 (TCC) TEDR Volume 12 Issue 1

The Facts

This was a building dispute which went to litigation. In the course of the litigation HHJ Thornton QC made a direction that:

“By 23.9.05 the parties’ architectural experts ….do meet without prejudice and prepare a statement of the issues upon which they are agreed and those upon which they are not agreed with a brief statement of the reasons for the disagreement.”

He also ordered that the case be stayed from 1st October to 31st November 2005 to allow the parties to mediate.

The experts complied with the directions order and by 1st September 2005 had agreed a statement of matters agreed and not agreed. In December 2005 (slightly later than anticipated) there was mediation. The mediation was unsuccessful in resolving the dispute and so the legal proceedings carried on in the New Year of 2006.

The Claimants sought to amend their pleadings in a way which was apparently inconsistent with the views expressed by their expert in the statement. The Defendants opposed the Claimants’ application to amend the pleadings. The Claimants asserted that as the statement was produced “without prejudice” for the mediation, it was a “without prejudice” document and so was privileged. Accordingly the Claimants contended that no reference could be made to its contents in the on-going litigation. The Defendants disagreed and contented that even if it were “without prejudice” and hence privileged, the differences between it and the Claimants new case were “so grotesque” that there had been an abuse of privilege whereby the document should lose its privileged status.

The Issues

The key issue was the application of the without prejudice rule in the above circumstances.

The Decision

The judge confirmed that normally a statement produced by experts under CPR 35.12 (3) would not be without prejudice and could be referred to in litigation.

However, the judge found as a fact that in this particular case “the primary function of the statement was to assist in the mediation”.

He accordingly found that it was and remained privileged and hence its contents could not be referred to in the litigation.

He also found that there was no abuse of privilege in this case which would otherwise cause the without prejudice and hence privileged nature of the document to be lost.


The judge confirmed that normally a statement produced by experts under CPR 35.12 (3) would not be without prejudice and could be referred to in litigation.

However, the judge found as a fact that in this particular case “the primary function of the statement was to assist in the mediation”.

He accordingly found that it was and remained privileged and hence its contents could not be referred to in the litigation.

He also found that there was no abuse of privilege in this case which would otherwise cause the without prejudice and hence privileged nature of the document to be lost.

(1) Cumbria Waste Management Limited and (2) Lakeland Waste Management Limited v Baines Wilson (a firm)

Disclosure, Without Prejudice, Confidentiality and Litigation

[2008] EWHC 786 (QB) TEDR Volume 13 Issue 2

The Facts

The Defendant had acted as Solicitor for the Claimants in connection with the drafting and negotiation of an agreement between themselves and DEFRA for the provision of waste management services during the foot and mouth epidemic in 2001.

The Claimants and DEFRA were in dispute as to the sums owning pursuant to that agreement.

Settlement of that dispute took place after a series of ‘without prejudice’ correspondence and two mediations.

The action before the Court was brought by the Claimants against the Defendant (their original solicitors) for negligence in relation to the initial negotiation and drafting of the agreement and thus the shortfall in the sums they contend that they were entitled to under the original agreement and those recovered from DEFRA following the mediations.

The Agreement to Mediate in the case of each mediation contained clauses as to the confidentiality and without prejudice nature of the mediation.

The Issues

Whether the Defendant (the original solicitor) was entitled to disclosure of documents arising out of or in connection with the two mediations between the Claimants and DEFRA.

The Defendant contended:

1. That there is no principle of English Law which means documents are protected from disclosure by reason of confidentiality alone;

2. Whilst without prejudice documents are prima facie protected from disclosure on the basis that they are privileged, the Claimants waived that privilege when they pleaded the case on the basis that the settlement with DEFRA was reasonable and thus claimed the shortfall;

3. In order to assess the reasonableness of the Claimants’ conduct, the Defendant needed to know what that conduct was and that included conduct at the mediations.

DEFRA were not a party to the proceedings but had been permitted to make representations pursuant to CPR 31.19(6)(b) and resisted the application.

The Claimants were neutral as to the application.

The Decision

The Law of privilege was reviewed. It exists because:

a. There are public policy reasons for encouraging parties to attempt settlement of their disputes by means of without prejudice discussions without fear that any statements made therein would be used within litigation; and

b. The express or implied agreement between the parties that the communications within the course of their negotiations should not be admissible in evidence should a contested hearing ensue.

The only exception of relevance was noted to be where a former client sues his former solicitor and an issue arises as to whether he has acted reasonably to mitigate his losses in his conduct and conclusion of negotiations with a compromise of proceedings brought against him (See: Muller v Lindsay & Mortimer [1996] 1 PNLR 74). The Claimants had sought to deny disclosure of the without prejudice material without success. It was held that the issue of the truth (or otherwise) of anything stated in the negotiation was unconnected with the issue and therefore, it fell outside the principle of public policy protecting without prejudice communication.

The instant case was distinguished from the exception in Muller. This case involved consideration of whether the without prejudice material of a third party (DEFRA) should be disclosed. The privilege belonged not only to the Claimant but to DEFRA as well. There were public policy reasons why DEFRA should be entitled to assert privilege.

There was an express agreement (within the Agreement to Mediate) that the without prejudice rule should apply. DEFRA were entitled to protect themselves from disclosure of material that may embarrass them. Here, the truth or otherwise of what was said at the mediation would or could be at issue.

The CPR encouraged without prejudice communication and mediation and thus the Court should be slow to find exceptions to the general rule. The Defendant was not within the Muller exception and thus the application failed on that basis.

In addition, whilst confidentiality is not necessarily a bar to disclosure, DEFRA were party to a confidentiality agreement within the Agreement to Mediate. DEFRA wished that agreement to be honoured and thus the Court should support the mediation process (which was encouraged by the CPR) in refusing, in normal circumstances, to Order disclosure of documents and communications within a mediation. In particular, the Court should be very slow to Order disclosure of documents held by a mediator. Mediators should be able to conduct mediations confident that, in normal circumstances, their papers should not be seen by the parties or others.


This case reinforces the purpose and importance of the Agreement to Mediate and the fact that, if there was a risk of disclosure being Ordered (absent abnormal circumstances) the process would be undermined.

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