Claims Consultants and Legal Professional Privilege

22-03-2012 09:41

In Walter Lilly and Company Limited v Mackay and Another [2012] EWHC 649(TCC) (15 March 2012) Mr Justice Akenhead was asked to consider an application by the Claimant, Walter Lilly, for an order that the Defendants disclose all correspondence with or documents created by Knowles Limited. The Defendants resisted that application arguing that the documents were protected by legal professional or legal advice privilege.

Knowles Limited is a well known claims consultant practice offering expert advice and assistance in relation to disputes affecting construction and other projects.  The issue considered by the Court was whether documents generated by such claims consultants attract legal professional privilege (LLP) or legal advice privilege and would therefore be privileged from disclosure in the present proceedings.

Mr Justice Akenhead considered the contents of Knowles retainer in this matter which stated that Knowles would provide “contractual and adjudication advice” to the Defendants and also envisaged circumstances in which an outside firm of solicitors may need to be appointed and act in conjunction with Knowles in relation to any dispute.

The Defendants argued that their understanding of Knowles’ instruction was to the effect that Knowles would provide legal advice to the Defendants and that the principal contacts at Knowles that provided such advice were and/or were understood by the Defendants to be qualified and practising barristers or solicitors.

Mr Justice Akenhead considered the relevant case law and in particular the comments of Lord Justice Lloyd in R (Prudential plc and or another) v Special Commissioner of Income Tax [2010] EWCA Civ 1094 which included the following:

“I consider that this court is bound to hold that LPP does not apply, at common law, in relation to any professional other than a qualified lawyer: a solicitor or barrister, or an appropriately qualified foreign lawyer...

...I would conclude that it is not open to the Court to hold a LPP applies outside the legal profession, except as a result of relevant statutory provisions.”

Mr Justice Akenhead considered that the onus must be on the party seeking to rely upon legal professional or legal advice privilege to establish the essentials to support it and held that the Defendants retained Knowles not as barristers or solicitors but as an organisation to provide the Defendants with claims and project handling advice and accordingly the documents generated by that appointment did not attract legal professional or legal advice privilege. 

Mr Justice Akenhead therefore ordered the disclosure of the documents.

Mr Justice Akenhead did go on to say:

“I should point out that this decision relates only to legal profession or legal advice privilege. It does not deal with litigation privilege and there remains an outstanding possible issue as to whether or not advice and other communications given by claims consultants in connection with adjudication proceedings are privileged. There is little authority on this latter issue and consideration might have to be given to issues of policy if and when this argument arises on another case.”

This may therefore be an issue that will be addressed if the issue arises in the future.

If you require more information on this issue, please contact Philip Vickers.

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