Claims Consultants beware! Do your emails have legal professional privilege?

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Walter Lilly -v- Mackay [2012] BLR 8250 TCC

Mr Mackay instructed James R Knowles as his commercial consultant to advise on claims by Walter Lilly & Co (WLC) who was contracted to build a large new residential house in Chelsea.  The parties went to Court and came to the point of each having to give “disclosure” of their relevant documents to the other side.  Mr Mackay claimed that he did not need to disclose letters he had received from Knowles because they had legal professional privilege.

HELD:

A Claims Consultant firm does not generate legal professional privilege for its correspondence even if it contains legal advice, unlike firms of solicitors and practising barristers.  This is the case even if individuals in the claims consultant’s firm are themselves legally qualified and practising solicitors or barristers.  The documents were therefore disclosable and could be referred to in proceedings.

Comment

This could prove highly embarrassing where cautious advice is given by a person who, whatever his title, is in fact applying the law and giving legal advice to clients.  The ONLY way to ensure emails are not read by the opposition – and the Judge! – is to route everything through solicitors or Counsel expressly instructed to advise.

Ironically, the law has recently been changed to allow solicitors to enter into new business structures with investors, surveyors and business people but they will still be officially operating, as solicitors’ firms rather than as something else.  There is clearly going to be great deal of room for confusion between what is and what is not a “law firm” entitled to “legal professional privilege”.

For more information, help or advice please contact Rob Langley on 0191 211 7975 or email [email protected].