Waiving goodbye to litigation privilege: requests under the Freedom of Information Act 2000

In Hallows v Wilson Barca LLP, the English courts explored the interaction between the duties of local authorities under the Freedom of Information Act 2000 (the “2000 Act”) and litigation privilege.

Whilst the full judgment is not yet available, the case highlights a number of useful points to consider when making information requests in the context of legal proceedings.

Litigation privilege

Litigation privilege protects confidential communications between a client, their lawyer, and a third party. In England, it applies where the dominant purpose of the communication is for legal proceedings.

The request for information – was it covered by litigation privilege?

Wilson Barca (WB), a firm of solicitors, was instructed to register the claimant’s title to a plot of land. The claimant raised proceedings, alleging WB had failed to register certain rights of way and that this would materially affect the land’s development value.

The claimant’s solicitor, H, wrote to the local authority about whether planning permission would be granted for development on the land. He stipulated that the planning department’s views were sought on a confidential basis, but did not mention the ongoing litigation. The local authority answered the request.

Subsequently, WB sought information from the local authority under the 2000 Act and was supplied with a copy of the pre-planning advice given to H. The claimant argued that this information was legally privileged; it had been obtained in the context of the litigation and accordingly, injunctive relief should be granted limiting WB’s use of the information.

Did litigation privilege apply?

The Court accepted that the dominant purpose of the communication was to aid the claimant in the litigation. However, the fact that the local authority had no indication of this was pivotal to whether privilege applied. In failing to give notice that the advice would be used in the context of litigation, the claimant’s solicitor had accepted that the information could come into the public domain. Consequently, he had impliedly waived any privilege which had existed.

Impact

The case highlights:

• the potential implications of failing to notify a public body that a request for information or advice is being made in the context, or with the prospect, of litigation.
• that failure to provide such notice may result in an implied waiver of litigation privilege and the production of the communication in court, whether helpful to your case or not.
• the need to bear in mind when communicating with local authorities that they are statutory bodies with duties under the 2000 Act to provide information to the public.

To discuss the implications of legal privilege and potential waiver, please contact your usual CMS contacts or one of the contacts below.