Water Lilly & Company Ltd v Mackay
| Jurisdiction | England & Wales |
| Judge | Mr Justice Akenhead |
| Judgment Date | 15 March 2012 |
| Neutral Citation | [2012] EWHC 649 (TCC) |
| Docket Number | Case No: HT-10- |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 15 March 2012 |
[2012] EWHC 649 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Akenhead
Case No: HT-10-
Sean Brannigan QC and Annaliese Day (instructed by Reynolds Porter Chamberlain LLP) for the Claimants
David Sears QC, Serena Cheng and David Johnson (instructed by Nabarros LLP) for the Defendant
Hearing dates: 12–13 March 2012
The Claimant has issued an application in this matter for disclosure of all correspondence with or documents created by Knowles Ltd ("Knowles") relevant to the issues in these proceedings. The application was heard on the first day of the trial. It raises issues as to whether documents generated by or towards a claims consultant, even one which retains legally qualified personnel, attract legal professional privilege. It may therefore be of some interest to those organisations and those who engage them.
The background is that Walter Lilly and Company Limited ("WLC"), the Claimant, was employed by DMW Developments Ltd ("DMW"), the Defendant, to construct a substantial house in the Boltons in London. The Architects were Barrett Lloyd Davis Associates ("BLD"); DMW also retained Gardner Theobald ("GT") as quantity surveyors for the project. The work started in 2004 and, all things being equal, it was initially hoped or anticipated that the works would be finished within 18 to 20 months. It is common ground that there were delays and from time to time WLC put in claims for extensions of time and, it is argued, claims for related loss and expense.
By June 2006, the delays were substantial but BLD appears to have formed the view that WLC was entitled to some significant extension of time. There were regular progress and other site meetings between the various parties. Indeed, ultimately extensions of time were granted until February 2007.
The correspondence in the trial bundles, at least on one reading, indicates that Mr Giles Mackay, who with his wife were to be the owners and occupiers of the house, became increasingly disillusioned with BLD and in October 2006 retained the well-known claims consultants, Knowles. Knowles remained involved until about March 2008, when their services seem to have been dispensed with. The written retainer was dated 19 October 2006 and by that document Knowles was to provide "contractual and adjudication advice". Rates were quoted for various types of services including Senior Consultant, Consultant and Secretarial Support as well as:
"Advocate/Director/Legally Qualified Person [and] Adjudication Manager/Delay Analyst/Expert Witness"
Clause 11 or of the conditions of this retainer stated:
" In cases where it appears to the Company that this appointment may or is likely to result in a need for the Client to appoint Solicitors to act for, advise or otherwise provide a service to the Client then, by this appointment, the Client appoints the Company as the Clients agent for the purpose of assisting in the definition of the scope of the conduct of Solicitors and for the purpose of inviting suitable Solicitors to approach the Client direct with a view to them receiving whatever instructions the client may choose to give such Solicitors in this regard "
It has been suggested by the Claimant, based on disclosed documentation, that a "strategy" was embarked upon between Mr Mackay and Knowles by which in effect the authority of the nominated Architect was constantly monitored, if not undermined and by which WLC was manoeuvred into a position in which it could be held liable for any delays. Of course, at this stage I have formed no views one way or the other about whether this is true or correct.
It is certainly the case that some of the correspondence to and from Knowles has been disclosed by DMW. However, it now appears that DMW's solicitors took the view at the time of disclosure, and in particular in the electronic disclosure exercise, that much of the Knowles documentary material attracted privilege.
However, on 16 February 2012, they wrote to WLC's solicitors claiming that four privileged documents relating to Knowles had mistakenly been disclosed and should not have been in the trial bundle. That led to an exchange of correspondence by which WLC's solicitors put forward the view that this documentation was not likely to be privileged. By its letter dated 1 March 2012, DMW's solicitors wrote that they had "revisited the Knowles' correspondence…and we now provide inspection by copies of the Knowles' documents"; thereafter and, about 2 weeks before the trial commencement, three lever arch files were then disclosed.
This has led to this application. Witness statements have been put in by the solicitors on both sides recounting the procedural history, with DMW's solicitors claiming privilege in relation to the balance. Mr Mackay has put in a short witness statement stating this:
"My two principal contacts at Knowles were Andrew Rainsberry and Adam Tomlinson, both of whom provided DMW with legal advice and both of whom are understood to be qualified, practising, barristers or solicitors. We already had a Contract Administrator, and employer's agent/site presence, and a Project Manager—what we needed was a lawyer. The questions that we posed to Knowles when we took them on were all of a legal nature and it was very clear to me that the advice I received was both legal in nature and from people who held themselves out to be Lawyers. Knowles also provided programming advice to us, but I understand that that category of Knowles' work has been disclosed.
Knowles worked for DMW until about March 2008 and at no time did my understanding of Knowles' role as legal advisers providing legal advice to DMW change."
Effectively, legal professional or legal advice privilege is claimed in relation to the balance of the Knowles' documentation. The primary argument revolves around whether or not Knowles were engaged as Solicitors or Barristers. There is no suggestion however that Knowles as a firm was qualified or certified to provide legal advice. However, it is argued that a client who in good faith instructs an organisation or person which he mistakenly believes is a qualified solicitor or barrister and then receives legal advice from them is entitled to the privilege protection. No direct independent evidence about Messrs Rainsberry and Tomlinson's professional status at the time has been put in although some internet based information has been put before the Court about them. This does not reveal whether either of them had any right between 2006 and 2008 to practise as a Barrister...
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