Here counsel was acting as the client’s agent and thus waived privilege on his behalf.

The solicitors of the claimant were sent privileged documents by mistake. The solicitor copied them before returning them. The owner sought an injunction to prevent the claimant using them. The injunction was granted. The privilege is not lost if disclosure is obtained by fraud or by means of making use of an obvious mistake.

In such instances the injunction to halt disclosure, a discretionary remedy, is to be made promptly. Rule 31.20 CPR provides that a party who is allowed to inspect a privileged document by inadvertence may only make use of it with permission of the court.

In a police investigation into drug trafficking a judge ordered disclosure of a document held by the solicitor of a member of the suspect’s family, G. The solicitor applied for judicial review to have the order quashed citing s10(2) PACE, whereby ‘Items held with the intention of furthering a criminal purpose are not items subject to legal privilege.’ The House of Lords held that even if G was an unknowing benefactor of the proceeds of drugs, s10(2) applied.

The principle here is the common law one that communications furthering crime or fraud are not covered, see R v Cox and Railton (1884). The fraudulent activity does not have to be necessarily criminal.

B confessed to his solicitor to the murder of a 16-year-old girl. He retracted his confession before trial and blamed his stepfather. He was acquitted and his stepfather subsequently charged and convicted. He had failed to secure disclosure of B’s confession. The House of Lords held, overruling earlier authorities, that the communication was protected by legal professional privilege.

Lord Taylor CJ said (at p507) ‘a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus much more than an ordinary rule of evidence . . . It is a fundamental condition on which the administration of justice as a whole rests.’

During care proceedings concerning a child whose parents were drug addicts an expert’s report on the mother’s explanation of certain events, was passed to her solicitors. She appealed the disclosure of the report. The appeal was dismissed by the House of Lords since litigation privilege did not arise in relation to non-adversarial proceedings.

Note, however, that the Three Rivers series of cases establishes that legal advice privilege may be available in non-adversarial proceedings.

Facing an action for misfeasance in public office the Bank of England claimed legal advice privilege in relation to documentary evidence produced for an official inquiry into the collapse of the BCCI. The documents had been generated some time before the current action. The court held that the advice privilege only attached to a small group of individuals in the Bank.

The controversial decision in this case had the effect of narrowing the group of people who could be called ‘clients’. In effect, corporate bodies must now take care who they nominate as the ‘client’ if they wish to protect confidential documents. Employees who are outside this nominated group will be third parties.

The claimants sought disclosure of further documents (which had not been the subject of the court order in the case above). The newly requested documents concerned communications with solicitors about the presentation of the Bank’s evidence to the official inquiry. The House of Lords, reversing the Court of Appeal, held that these were covered by legal advice privilege.

The House extended the scope of legal advice privilege to cover documents generated in a relevant legal context even if they were not specifically directed to legal matters. The case also confirmed that legal advice privilege, whether or not there is impending or potential litigation, applied.

W was the widow of a man killed in a railway accident. She sued the BRB and sought disclosure of an internal accident report made two days after the accident by engineers and sent to the BRB solicitors. The House of Lords ordered disclosure since in order to be covered by litigation privilege the dominant, if not the sole, purpose of the submission of the document had to be pending litigation. This was not the case here.

The public interest in disclosure here prevailed over an extension of litigation privilege.

In an action for slander the claimant challenged the requirement to respond to interrogatories on her alleged promiscuity on the grounds that her responses might lead to penalty or censure by an ecclesiastical court for adultery. The court held that answering did not infringe her privilege against self-incrimination.

In this case the only likely penalty was to have the sacraments refused and this did not constitute a penalty within the scope of the rule.

The Environmental Protection Act made it an offence for local authorities not to give information about their waste management. It was held that this did not breach Art 6.

The outcome shows how the courts will distinguish responses which might be used in criminal proceedings and those used for administrative inquiries.