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Access to relevant evidence is allowed in solicitor's claim

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Posted by Susan Hopcraft on 10 October 2012

Susan Hopcraft Partner

When you make a claim against a solicitor you need to allow third parties to review the advice that was given. You have to waive the legal privilege that normally protects the confidentiality of legal advice.

That does not normally pose a problem, since if a solicitor has made a mistake then correcting it is usually the priority rather than keeping your affairs and advice confidential. The solicitor’s file is open to view, warts and all. 

In a recent case there was a question over whether the barrister’s file was also open to the other side to review, where both parties referred to the barrister’s advice in their pleadings.

Hellard v Irwin Mitchell

In Hellard v Irwin Mitchell a negligence claim was made against solicitors who, it was alleged, had failed to advise and/or issue a claim in time to beat the relevant time bar defence against a financial adviser. The negligence claim against the solicitor was valued at £1.3m, largely being the wasted costs of the failed financial adviser claim.

The defendant firm argued that, by bringing the professional negligence claim, the claimant had impliedly waived the client's legal privilege in the original proceedings, meaning not just the solicitor’s own file but the papers of the barrister who had worked with the solicitor on the claim. This would allow the defendant to approach the barrister to obtain witness statements.

The claimants accepted that the bringing of the negligence claim operated as a waiver of privilege over the solicitor’s file in the original proceedings, but argued that the barrister’s file remained privileged, as the barrister had not been sued.

The decision

Judge Purle QC noted that the point was not directly governed by any previous legal authority, but wanted to prevent ‘cherry picking’ of evidence.  He wanted to ensure that the parties had fair access to relevant evidence rather than allowing one party to make a case based on the solicitor’s file, but not another key part, the barrister’s papers. Taking the example of a piece of the solicitor file that would be disclosed, a file note of the barrister’s oral advice, he decided that it was appropriate for the barrister’s file to be available too, to enable a proper assessment of the advice given. Fairness required that the defendants should be able to rely on all evidence of relevant privileged communications.

This case shows a strong hand by the courts in allowing access to relevant evidence despite the very strong shield that legal privilege often represents.

About the author

Susan is a disputes and professional negligence lawyer, mainly in the financial services sector.

Susan Hopcraft

Susan is a disputes and professional negligence lawyer, mainly in the financial services sector.

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