The king asked the queen; and Fiona asked her friend…

AA Milne (also author of Winnie the Pooh) covered it in seven short verses (‘The King’s Breakfast’ from When we were very young (1924)). Roberts J does it in 107 paragraphs on 25 close printed pages (G v G (Legal professional privilege)[1] [2015] EWHC 1512 (Fam), Roberts J http://www.bailii.org/ew/cases/EWHC/Fam/2015/1512.html) and with much legal learning – mostly centred on (1) legal professional privilege (LPP) and legal advice privilege (LAP); and, if LAP did not apply, (2) confidentiality and whether it justified the grant of an injunction.

When the king wanted butter for his bread he asked the queen (obviously). The queen asked the dairy-maid who went to see the Alderney. The Alderney was about to go to bed, and suggested the king might like marmalade instead of butter. The king was not at all happy about that. As his little lower lip quivered the queen rushed back to the dairy-maid, who went to the shed. ‘The cow said:

“There, there

I didn’t really

Mean it;

Here’s milk for his porringer

And butter for his bread.”’

The king was very happy and – for that breakfast, at least – had ‘a little bit of butter to his bread’.

G v G: the facts

In G v G there was a trail from W (‘Fiona’) through two friends (queen and dairy-maid) which lead to Deborah Bangay QC (a parallel for the Alderney in AA Milne). There had been a 2010 consent order, following divorce proceedings, where Fiona had accepted ‘slightly less than half of’ £15.7M of the family assets. Later, she had discovered, she thought, that there might be rather more family assets to which her husband had been entitled. Had the order been made without full disclosure by H (‘Jason’)? She sought permission to appeal out of time (by application dated 23 July 2014) and thus to question the extent of disclosure and, if possible, to achieve the re-opening of her financial relief application against Nigel.

In September 2012 she had become aware of the possibility of the additional assets (in a trust fund of which Nigel was said to be a beneficiary). She spoke to her friend Debra, who spoke to her friend Patricia, who knows Deborah Bangay QC (all real names here); and Patricia arranged for Debra to speak with DBQC. DBQC said she didn’t take direct access instructions but gave Debra the name of Lewison Meltzer Piggott (LMP) and emailed Julian Ribet of LMP to say ‘[Fiona] may call you re performance of a consent order and ? poss non-disclosure’. This email came into the possession of Nigel as a result of DBQC having sent a copy of the email to his solicitors acting in the set aside proceedings. They then passed it to Nigel having given Fiona’s lawyers notice that they planned to do so ([15]-[28]).

Production to the court at trial of W’s set aside appeal was at the main issue before Roberts J:

[8] The central issue which I have to decide is whether or not the contents of an email dated 20 September 2012 which was sent by DBQC to Julian Ribet … were confidential and/or privileged. W’s case is that the contents of the email were (and remain) privileged and this court can and should prevent the use of the material at the forthcoming appeal hearing and require H’s entire legal team (who are now privy to that information) to withdraw from the case. H says no such privilege exists and he is entitled to use the email and the information within it in support of his case before Moor J in July 2015.

Why was this so important? Because Nigel takes the point (the appeal is yet to come on for trial) that delay in bringing this case to court may be fatal to Fiona’s claim. He and his lawyers want to know what was said by Fiona to Debra, in particular; and what may have been said by DBQC. Fiona claimed that LPP – specifically legal advice privilege (LAP) – applied to her conversations and the contact with DBQC; and that therefor the document should not be produced in court.

Roberts J characterised the issues she had to consider as follows (para [45]):

  • Does the conversation (or conversations, if more than one) between Fiona and Debra prior to her making contact with DBQC attract the protection of LPP (and specifically LAP)?
  • Does the (admittedly, short) conversation between Debra and DBQC on 19/20 September 2012 attract LPP?
  • Is this a case where injunctive relief should be granted to restrain the use of either confidential or privileged material?

Confidentiality and privilege

The conversations at (1) and (2) were confidential: the confidor could reasonably expect that the confidant would not pass on what was said. But to what extent might either conversation have the additional protection of privilege? The general rule is that there is a public interest in confidences being maintained (Att Gen v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 (Spycatcher case) Lord Goff at 281: ‘… there is such a public interest in the maintenance of confidences, that the law will provide remedies for their protection’). However, confidentiality on its own can give way to another higher right, such as the right of the confidant or of a third party (perhaps Nigel in this case?) to a fair trial.

However, if LAP applies it provides a veneer to confidentiality. If established LAP is absolute (R v Derby Magistrates’ Court exp B [1995] UKHL 18, [1996] 1 AC 487), and cannot be overridden. Roberts J defines privilege as:

[36] … LAP is a fundamental principle of common law which enables people effectively to seek and obtain legal advice about their rights and duties whilst guaranteeing that open and frank discussions with their lawyers will be protected from disclosure, regardless of whether or not they are involved in either current or contemplated legal proceedings. The privilege belongs to the client and not to the adviser….:-

(i) clients must be able to seek and receive legal advice if the proper administration of justice is to be maintained;

(ii) sound legal advice can only be given if the client is candid with the legal adviser; and

(iii) to ensure candour and openness, the law must guarantee that the communications between a client and legal adviser remain confidential unless the client consents to disclosure.

[37] These principles are firmly and deeply embedded in English jurisprudence: see R v Derby Magistrates’ Court, Ex p B [1996] AC 487 at 507 to 509,… B v Auckland District Law Society [2003] 2 AC 736 at 756 to 759, and R (Morgan Grenfell & Co Ltd) v Special Comr of Income Tax [2003] 1 AC 563 at 606 to 607. Their application in the context of confidential and/or privileged material produced for the purposes of matrimonial proceedings is commonplace ….

Resolution of the issues

Of the issues set out in para [45] (see above), Roberts J concluded that no question of LAP could arise from the conversation between Fiona and her friend Debra ([83]). Indeed how could it? No legal advice from a lawyer (R (Prudential plc and anor) v Special Commissioner of Income Tax [2013] UKSC 1) – or anyone else – was involved, subject to the conduit point (below). Debra, said the judge, was not Fiona’s agent for the second conversation: between her and DBQC ([84]). There was no evidence of any legal advice having been given by DBQC. Fiona ‘was never in a [professional legal] relationship with DBQC’ so no question of LAP could arise ([88]).

The information remained confidential. Should the court exercise its discretion to grant an injunction – the appropriate remedy: see eg Istil Group Inc & Anor v Zahoor & Ors [2003] EWHC 165 (Ch), Collins J – to protect the communication from production in court? Quoting from Lord Millet in B & ors v Auckland District Law Society (New Zealand) [2003] UKPC 38, [2003] 2 AC 736 the judge pointed out that though the email was known to both parties (ie ‘the cat was out of the bag’), the cat ‘can be put back in the bag’ (G v G paras [67] and [101]) as Lord Millet explained. Roberts J could find no reason why any order should be made to prevent production of the email at the appeal hearing ([105]).

Cost of family proceedings

There is much – often justified – criticism of the cost of family proceedings. This case involved two silks and three juniors, and unnumbered solicitors and other lawyers in the background (including another silk). There were two real issues: did LAP apply; and if not was Fiona entitled to an injunction in respect of confidential information? The main protagonists knew what LAP means; so with expedition and limited erudition this issue could have been dispatched. If LAP did not apply, this then left the judge to exercise her discretion over whether or not to restrain production by an injunction in respect of the confidences.

It is tempting to wonder whether if the same issues had arisen where the assets were a fraction – say less than 10% – of those in G v G, would the court administration have permitted the same extensive treatment (as it did not, for example, in SC v YD [2014] EWHC 2446 (Fam) an appeal from a district judge on without prejudice rule immunity and a document). Devotion of an appropriate amount of the court’s resources is part of the overriding objective (FPR 2010 r 1.1). The law is the same whether the assets are £500,000 or £50M. I suspect an hour or two in front of a district judge would have resolved the same issues for the lesser money case; but is this to give both sets of parties fair trials?

[1] My title




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