London Fire Emergency Planning Authority v Halcrow Gilbert & Associates : Halcrow Gilbert & Associates v Jones
| Jurisdiction | England & Wales |
| Judge | JUDGE TOULMIN |
| Judgment Date | 28 July 2004 |
| Neutral Citation | [2004] EWHC 2340 (QB) |
| Docket Number | HT02501 |
| Court | Queen's Bench Division |
| Date | 28 July 2004 |
[2004] EWHC 2340 (QB)
His Honour Judge Toulmin CMG QC
HT02501
HTO4103
IN THE HIGH COURT OF JUSTICE
TECHNOLOGY AND COMMERCIAL COURT
QUEEN'S BENCH DIVISION
MR M WIELICZKO (instructed by Winyard Fearon) appeared on behalf of LFEPA
MISS C DOERRIES (instructed by Mayer Browne Rowe & Maw) appeared on behalf of HALCROW GILBERT
MR CANTLE (instructed by Kennedys) appeared on behalf of D G JONES
JUDGMENT ON AN APPLICATION
: This is an application by the defendants, referred to collectively as Halcrow, for specific disclosure of a report by Mr Pickavance dated 30 August 2002 prepared for the London Fire and Emergency Planning Authority ("the Authority"), together with Mr Pickavance's working documents associated with the report, a topic which I will deal with at the end of the judgment. Disclosure is resisted primarily on the grounds of legal professional litigation privilege, although in the course of argument legal advice privilege was also relied upon. Mr Pickavance's transcripts, tapes and notes which relate to the Pickavance report are included in the working documents for which application is made.
Put shortly, Halcrow claims that the Pickavance report is not privileged because: (1) the dominant purpose of the report was not for use in litigation but rather, as it was told repeatedly by the Authority, the dominant purpose was to carry out a project audit on the overspend on the contract and delay in its completion, this report being required by the elected members of the Authority; (2) in the alternative, if I hold that the report would normally have been privileged from disclosure, it is argued that the Authority is deemed to have waived its claim to privilege or is estopped from claiming privilege where (a) the request was put on a basis for which privilege could not be claimed and the real purpose was deliberately concealed from Halcrow and (b) when the document contains, and its conclusions are based on, evidence obtained from Halcrow only by suppressing the purpose for which the evidence was required; (3) the Authority had in any event lost the privilege because it had chosen to disclose the witness interviews and use evidence from parts of the Pickavance report for which privilege was generally claimed, and in doing so it had lost any claim for privilege on the whole document. Halcrow say that it is not possible to sever the disclosure of the interviews and documents from the Pickavance report itself.
The Authority says in response that the Pickavance report is privileged because the dominant purpose of the report was for use in litigation against Halcrow and at least some of the contractors. The Authority supports the case by saying that Halcrow well knew that the contract had suffered substantial delays and overrun on costs and that legal proceedings were contemplated, and Halcrow also must have known that the report would be used in legal proceedings. The Authority also claims that the interviews (for which privilege has not been claimed) are separate from the Pickavance report and that Halcrow's senior employees in co-operating in these interviews did no more than they were contractually bound to do. In final submissions the Authority seemed to accept that the interviews with Halcrow's senior employees on the project had a dual purpose, but this is said by the Authority to be irrelevant. In any event, the Authority maintains that the dominant purpose was for use in litigation, even if a subsidiary purpose may have been the audit required by the elected members.
The Authority also leaves open the claim for legal advice privilege on the basis that it was an integral part of Winyard Fearon's report, Winyard Fearon being the authority's solicitors. Halcrow disputes this and says that a report which was commissioned and written in circumstances which were not privileged does not become privileged by being appended to legal advice. Legal advice privilege cannot be claimed for communications between a client and third party.
The law
In Three Rivers DC v Bank of England (No 5) [2003] QB 1556 at 1561, Longmore LJ, in a judgment of a court consisting of himself, the Master of the Rolls and Sedley LJ, set out the boundaries of the two distinct areas of legal professional privilege, namely litigation privilege and legal advice privilege. In relation to litigation privilege he said:
"It is clear on the authorities that documents emanating from or prepared by third parties or employees of a party are covered by the principle of 'litigation privilege' if prepared with the dominant purpose of use in existing or contemplated litigation."
This he contrasted with legal advice privilege, viz privilege in relation to legal advice that is not founded on the existence or contemplation of litigation. He noted that the reason for the distinction was that in In re L (a Minor) (Police Investigation: Privilege) [1997] AC 16, the House of Lords decided that:
"… litigation privilege is essentially a creature of adversarial proceedings and thus cannot exist in the context of non-adversarial proceedings."
Guidance relevant to this case was set out by Lord Denning MR in Buttes Gas v Hammer (No 3) [1981] QB 223 at 243, cited at page 1575 of Longmore LJ's judgment:
"Reports made by agents or employees to employer. Reports made by employees to their employers or by agents to their principals are not privileged unless they satisfy, and are privileged if they do satisfy, the conditions already set out, that is to say they must be reports made for the purpose of being laid before the party's legal adviser for the purpose of obtaining his advice in connection with the anticipated or pending litigation."
At page 1583 Longmore LJ emphasised that:
"The question of dominant purpose is a matter for a court to determine after consideration of the relevant evidence."
In Waugh v British Railways Board [1980] AC 521, the leading case on legal professional privilege, the House of Lords had been concerned with whether an accident report, stated to be for the purpose of enabling the board's solicitor to advise the board, was entitled to litigation privilege. The board resisted disclosure on the ground that one of the principal purposes of the report was so that it could be passed to the chief solicitor to enable him to advise on his legal liability and if necessary to conduct the board's defence to the legal proceedings. At page 533 Lord Wilberforce reached a conclusion on the law with which the other law lords agreed:
"It appears to me that unless the purpose of submission to the legal adviser in view of litigation is at least the dominant purpose for which the relevant document was prepared, the reasons which require privilege to be extended to it cannot apply."
The court held that where there was a dual purpose for the report, it could not be said that the dominant purpose was for advice in relation to litigation and the report should be disclosed. The court observed that the fact that the report had been sent to the legal adviser for his advice was not conclusive.
The following cases illustrate the principles that (a) legal advice privilege is confined to legal advice from lawyers and (b) in relation to legal advice for litigation, the privilege is wider and can include documents brought into being by third parties, provided that the dominant purpose of such documents is to obtain legal advice as to whether a claim can be made or defended in litigation.
In Price Waterhouse v BCCI Holdings [1992] BCLC 583 at 590, Millett J explained his reasoning thus:
"Given that the dominant purpose of the investigation was to establish the facts necessary to enable BCCI's financial position to be determined, documents brought into existence in the course of the investigation did not in my judgment attract legal professional privilege because legal advice might be necessary in order fully to evaluate the financial implication of the facts. The obtaining of legal advice is not an end in itself. To attract privilege it must be for the purpose of actual or contemplated proceedings."
On the other hand, in Re High Grade Traders Ltd [1984] BCLC 151, a claim to privilege was made in respect of reports obtained by insurers who were suspicious of the circumstances attending a fire on the premises of the insured. Oliver LJ held that the dominant purpose of the inquiries was to find out the cause of the fire on the basis of which legal advice would be obtained as to whether claims should be made or defended.
In Plummers v Debenham Plc [1986] BCLC 447 Millett J had to consider at what stage advice could be said to have come into existence for the purpose of litigation. In reaching his conclusion he relied on a passage from Oliver LJ's judgment in Re High Grade Traders Ltd:
"It is I think clear that if litigation is reasonably in prospect, documents brought into existence for the purpose of enabling the solicitors to advise whether a claim shall be made or resisted are protected by privilege, subject only to the caveat that it is the dominant purpose for their having been brought into being."
In Plummers v Debenhams, Millett J also considered the question of whether privilege can be lost. He said at page 458:
"If privilege is to be successfully claimed for material based on information obtained from the other party that contemplated litigation, it is argued that full disclosure of the purpose for which that information is required should be made. I assume without deciding it that it is not...
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