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Legal Professional Privilege

Family and Children

In the recent case of [2011] EWCA Civ 684, the Court of Appeal dismissed an appeal against an order to disclose the notes of meetings between the mother, solicitor and barrister.

In this case the child suffered various injuries when he was six weeks old.  A fact-finding hearing was to be held to try and establish who had harmed the child.

Initially the mother stated that she had no knowledge of the cause of the injuries.  However, on separating from her husband she suggested that he was responsible.  The mother also gave details of some of the advice she had been given by her legal team which had prompted her to change her statement.  The father claimed that by doing this she had waived the legal professional privilege which exists between solicitor and client.

The judge found for the father on the basis of fairness.  The mother’s subsequent appeal was dismissed.  It was judged to be unfair to allow the mother to only disclose certain information which had led to her changing her statement.  Without full disclosure the court would only have limited and potentially misleading information.  It was a valid concern that the mother might have told her solicitor and barrister what she thought they wanted to hear rather than the facts which she knew to be true.  The mother accepted that she had waived her privilege and accordingly, in the interests of fairness, a further full disclosure was required.