Scc v B
| Jurisdiction | England & Wales |
| Judgment Date | 2000 |
| Date | 2000 |
| Year | 2000 |
| Court | Family Division |
Care proceedings – Legal professional privilege – Disclosure of material covered by legal professional privilege in criminal proceedings in care proceedings – Application for disclosure of experts’ reports prepared for defence in criminal proceedings – Whether duty to provide full and frank disclosure in family proceedings outweighing right of legal professional privilege in criminal proceedings.
Practice and procedure – Disclosure – Disclosure of material covered by legal professional privilege in criminal proceedings in care proceedings – Whether duty to provide full and frank disclosure in family proceedings outweighing right of legal professional privilege in criminal proceedings.
N, one of three triplets, suffered serious injuries and criminal proceedings were brought against her father in respect of those injuries. Care proceedings were commenced and interim care orders remained in force in relation to all three children. The father obtained leave to instruct his own medical experts for the purposes of the care proceedings, and who were different to the ones he was proposing to instruct in the criminal proceedings. The guardian ad litem, supported by the local authority and the mother, applied for disclosure in the care proceedings of the identity of, and copies of the reports and notes of, the medical experts in the criminal proceedings. The father, relying on R v Derby Magistrates’ Court, ex p B [1996] AC 487 alleged, inter alia, that his communications with the experts he instructed through his solicitor in connection with the criminal proceedings were subject to legal professional privilege and that he therefore had an absolute right to refuse to disclose, and to prevent the experts and anyone else from disclosing, those communications and the experts’ reports. The guardian ad litem, relying on Re L (a minor) (police investigation: privilege) [1996] 2 FCR 145 and the duty in family cases to disclose all relevant material concerning the welfare of the child, maintained that (a) the father did not have such an absolute right and had a duty to disclose such communications and reports, (b) alternatively that either the father could not in the care proceedings assert legal professional privilege in respect of his communications (direct or indirect) with the medical experts he instructed in connection with the criminal proceedings or in respect of their reports, or that he only had a qualified right to assert that such material should not be disclosed in the care proceedings, and (c) in the further alternative, that the father should disclose the identity of those experts.
Held —(1) When, and from the time that, it came into existence litigation privilege in respect of material such as that under consideration in the present case conferred an absolute right on the litigant, or potential litigant. The existence of the duty of full and frank disclosure in cases concerning children did not override a right of a party to Children Act proceedings where the welfare of the child was the court’s paramount consideration to claim legal professional privilege which arose in, or in connection with, other proceedings. It followed that the father could claim legal professional privilege in respect of his (direct or indirect) communications with, and the reports of, the medical experts he instructed solely for the purposes of the criminal proceedings, and on that basis (and thus so long as he had not waived the privilege) the father had an absolute right to refuse to disclose such communications and reports in the care proceedings.
(2) A witness or potential witness should not volunteer material that was covered by legal professional privilege and should not be compelled by the court to provide such material unless of course the witness had the consent of the person who had the benefit of the privilege. Accordingly the father could refuse to, and should not be ordered to, disclose the names of the experts he instructed for the purposes of the criminal proceedings.
Cases referred to in judgmentAnderson v Bank of British Columbia (1876) 2 Ch D 644, CA.
Barings plc, Re, Secretary of State for Trade and Industry v Baker [1998] 1 All ER 673, [1998] 2 WLR 667.
Bishopsgate Investment Management Ltd v Maxwell [1993] Ch 1, [1992] 2 All ER 856, [1992] 2 WLR 991, CA.
Buttes Gas and Oil Co v Hammer (No 3) [1981] QB 223, [1980] 3 All ER 475, [1980] 3 WLR 668, CA; varied [1982] AC 888, [1981] 3 All ER 616, [1981] 3 WLR 787, HL,
C (a minor) (interim care order: residential assessment), Re[1997] 1 FCR 149, [1997] AC 489, [1996] 4 All ER 871, [1996] 3 WLR 1098, [1997] 1 FLR 1, HL.
Calcraft v Guest [1898] 1 QB 759, CA.
Crompton (Alfred) Amusement Machines Ltd v Customs and Excise Comrs (No 2) [1974] AC 405, [1973] 2 All ER 1169, [1973] 3 WLR 268, HL.
DH (a minor) (care proceedings: evidence and orders), Re[1994] 2 FCR 3; sub nom Re DH (a minor) (child abuse) [1994] 1 FLR 679.
EC (a minor) (care proceedings: disclosure), Re [1996] 3 FCR 521; sub nom Re C (a minor) (care proceedings: disclosure) [1997] Fam 76, [1997] 2 WLR 322, [1996] 2 FLR 725, CA.
Grant v Downs (1976) 135 CLR 674, Aust HC.
Guinness Peat Properties Ltd v Fitzroy Robinson Partnership (a firm) [1987] 2 All ER 716, [1987] 1 WLR 1027, CA.
Harmony Shipping Co SA v Davis [1979] 3 All ER 177, [1979] 1 WLR 1380, CA.
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K (minors) (care proceedings: disclosure), Re[1994] 2 FCR 805; sub nom Re K (minors) (disclosure of privileged material) [1994] 3 All ER 230, [1994] 1 WLR 912, [1994] 1 FLR 377.
L (a minor) (police investigation: privilege), Re [1996] 2 FCR 145, [1997] AC 16, [1996] 2 All ER 78, [1996] 2 WLR 395, [1996] 1 FLR 395, HL.
L (care: confidentiality), Re [1999] 1 FLR 165.
London United Investments plc, Re [1992] Ch 578, [1992] 2 All ER 842, [1992] 2 WLR 850, CA.
M (a minor) (care order: threshold conditions), Re [1994] 2 FCR 871, [1994] 2 AC 424, [1994] 3 All ER 298, [1994] 3 WLR 558, [1994] 2 FLR 577, HL.
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Oxfordshire CC v M [1994] 1 FCR 753, [1994] Fam 151, [1994] 2 All ER 269, [1994] 2 WLR 393, [1994] 1 FLR 175, CA.
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R v Ataou [1988] QB 798, [1988] 2 All ER 321, [1988] 2 WLR 1147, CA.
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R v Derby Magistrates’ Court, ex p B [1996] AC 487, [1995] 4 All ER 526, [1995] 3 WLR 681, [1996] 1 FLR 513, HL.
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ApplicationIn the course of care proceedings in respect of triplet the guardian ad litem, supported by the local authority and the mother, applied for disclosure of (a) the identity of, and (b) copies of the reports and notes of the medical experts that the father was proposing to instruct in connection with the preparation and presentation of his defence to criminal proceedings brought against him after one of the triplets suffered serious non-accidental injuries. The case was heard and judgment was given in chambers. The case is reported with the permission of Charles J. The facts are set out in the judgment.
Guy Spollon (instructed by Legal Services) for the local authority.
Frances Oldham QC and Caroline Jones (instructed by Parrans & Co) for the mother.
Robin Rowland (instructed by Goodger Auden) for the father.
Michael Keehan (instructed by Grindeys) for the guardian ad litem.
Cur adv vult
29 July 1999. The following judgment was delivered.
CHARLES J.This case concerns triplets one girl and two boys all born on 8 November 1997. Their names are N, A and A.
Their guardian ad litem has made an application, which is supported by the local authority and the mother of the three children that the father be ordered to disclose in these proceedings (a) the identity of, and (b) copies of the reports and notes of the medical experts, the father is proposing to instruct in connection with the preparation and presentation of his defence to criminal proceedings. The criminal proceedings have been brought against him under s 18 of the Offences against the Person Act 1861 in respect of injuries suffered by N. It is this application that is the subject of this judgment.
BackgroundN suffered serious injuries, including a skull fracture, limb fractures and haemorrhaging. These care proceedings were commenced in July 1998 and since 11 August 1998 interim care orders have been in force in respect of all three children.
At the time of the hearing before me the father’s criminal trial was fixed for a three week hearing starting on 13 September 1999, and these care proceedings were fixed for hearing in October. However N’s condition is very serious and her prognosis is very poor. This has had the result that a summons has been issued seeking (inter alia) a declaration that it will be lawful to administer treatment to N, notwithstanding any refusal of her parents or either of them to give their consent to any such treatment, including treatment involving non-resuscitation in the event of aspiration, cardiac arrest...
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