Legal professional privilege has long been established in English common law and recently has been recognised as a fundamental human right under the right to privacy pursuant to Article 8 of the European Convention on Human Rights.

There are two main types of privilege recognised under English law: legal advice privilege, for communications between lawyers and their clients either giving or receiving legal advice; and litigation privilege, for communications between lawyers and their clients, or between either of them and a third party, for the dominant purpose of seeking or receiving legal advice, in relation to contemplated litigation.

Legal professional privilege is of extreme importance as it entitles a party to refuse to disclose privileged documents or communications, therefore operating as an exception to the standard disclosure obligations in English court proceedings, which require a party to disclose any document upon which it relies, which adversely affects its case or another party’s case, or that supports another party’s case.

The case of Re D (A Child) (2011) is an important warning to those who have dealings with our legal system.

The facts of the case

During the proceedings relating to the care of a child, a mother (M) changed her account of how certain injuries suffered by her child had occurred. In her witness statement she set out in detail how her change of heart had evolved throughout conferences with members of her legal team. This witness statement discussed that she was given advice and went as far as to the explain the nature of the advice received. Further, notes that she had made during the course of those conferences were exhibited with the witness statement.

The father’s legal representatives argued that by explaining the nature of the advice that she was given, she had waived the professional privilege which exists between a solicitor and client. Consequently, the father said that this waiver justified him seeking disclosure of the attendance notes made by M’s solicitors and counsel at the numerous conferences. The Father argued that for the court to be able to decide whether the M was a reliable witness, or whether she had been led by her legal team to say things that they wanted to hear, such disclosure was required.

The judge at first instance found that M had waived her privilege, and required full disclosure of the attendance notes made by M’s solicitors and counsel at the various conferences.

The mother appealed, however this action was dismissed by the Court of Appeal who stated that there had been a waiver of privilege and fairness demanded full disclosure of the relevant attendance notes.

Notably, the Court of Appeal did confirm that saying “I am acting on the advice of my solicitors and counsel” would not ordinarily justify disclosure of the advice or of the circumstances leading to a change of heart.