Rapidly crumbling – Bruzas v Saxton

This is an ancillary relief case, but one that (when it is finally decided) could have massive implications for lawyers in all fields.

Bruzas v Saxton 2018

http://www.bailii.org/ew/cases/EWHC/Fam/2018/1619.html

I’ll try to give a quick and dirty explanation of the key concept – legal professional privilege. (I’m doing this because not all of my beloved readers are lawyers). Basically, what you say to your lawyer is secret, and the lawyer can only share it with other people with your permission. Whilst you can be asked by a Judge to produce documents, you can’t be asked to provide copies of your legal advice (generally, there are some very very unusual exceptions – one particular one is where what has gone on between you and your lawyer is fraudulent or malpractice – what normally gets bundled together as the concept of ‘iniquity’ https://www.lawgazette.co.uk/practice-points/exception-to-the-privilege-rule/5046185.article ) and you can’t be asked questions about the legal advice that you’ve been given. The only time that the legal advice that you’ve been given comes before the Court is when you agree – that’s called waiving privilege.

This is a really important principle of law – it allows the client to be really honest and frank with their lawyer and in turn allows the lawyer to give very honest and robust advice without worrying that the other side will see it and turn it to their advantage.

In this case, a husband and wife were divorcing and arguing about their financial affairs. A paralegal at the law firm instructed by the husband was working on the case (a paralegal means someone doing some form of law work, but is not a qualified solicitor or legal executive – it can mean doing very complex and involved work, or it can be being a photocopying monkey or anything in between. Paralegals, as in all professions, can include incredibly able and talented people, or people who are less so)

The paralegal took it upon themselves to send lots of documents from the lawyer’s file (which were secret) to the Court (who should not have had them).

4.During January 2018, Parker J received through the post a quantity of documents or “material” from a person who was employed during 2017 as a paralegal in the firm of solicitors who had been acting, both in 2013/2014 and still in 2017, on behalf of the husband. I stress that I have not personally seen any of those documents or material at all. I understand, however, that they contain, or include, some account of things allegedly said between the husband, as client, and his solicitor (by whose firm the informant was employed) and junior counsel during the course of 2017. It provisionally appears, as I understand it, that the paralegal was acting in some way as what is colloquially known as a “whistle blower”. The wife herself has said several times today that she does not know that person and has never met her and has never communicated directly with her.

Sadly we don’t have any details as to whether there was a covering letter, or post-it note, or anything from the paralegal that explained why he or she was sending the material, but there appears to have been something to show that it was a ‘whistleblowing’ activity, rather than say a mistake (copying those documents to send to the husband who was the client, but wrongly sending them to the Court)

Parker J did something curious here, in that the Court being in possession of documents which appeared to be covered by legal professional privilege did not do what I would recommend (recuse yourself from the case, send the documents back to the husband’s firm saying that they had not been read or copied but that Parker J wouldn’t do the case any more) but instead sent them to the wife’s team.

At that point, the cat is out of the bag. The wife has those documents, and has not come by them by any underhand or duplicitious means – she was sent them by the Court. It is hard for her, or those advising her not to give them any thought.

(We don’t know what was in the documents, and it would be wrong to speculate – particularly since that might be accusing the husband or his legal firm of sharp practice. I have my own ideas on what they might be, but it would be a guess, not an informed view)

5.This clearly created a most unusual and difficult situation for Parker J, who decided of her own motion to set up a further hearing, which took place on 22 February 2018, to consider what should happen in relation to these documents and material. Parker J had, however, already supplied copies of all the documents and material to both parties, who then had and still do have them in their possession. At the further hearing, the wife again appeared in person and Mr Philip Marshall QC, who had appeared on behalf of the husband at the hearing in December 2017, again appeared on behalf of the husband. In advance of that hearing, the wife had sent to the solicitors then acting on behalf of the husband (who were not the solicitors who had previously acted on his behalf, and are not the solicitors acting for him now) a formal but unissued application notice in Form N244. That application notice is dated 16 February 2018 and an unissued and unsealed copy of it is indeed already on the court file. Under paragraph 3 of the application notice, in answer to the question, “What order are you asking the court to make and why?” the wife wrote, “To overturn judgment made on 11 December 2017 that dismissed application for setting aside consent order. Grounds are perjury and perverting the course of justice committed by respondent and his legal team.” After the hearing on 11 December 2017, the wife had expressly indicated that she did not have any intention to seek to appeal from the decision and order of Parker J of that date. It does seem that her unissued application in Form N244 and its reference to “perjury and perverting the course of justice” was triggered by the contents of the documents and material that the paralegal had sent to Parker J and Parker J had, in turn, sent to both parties.

6.At the hearing on 22 February 2018, there was an application that Parker J should now recuse herself from further involvement in this case, effectively on the grounds that she had already seen the material sent by the paralegal which, in the submission on behalf of the husband, is protected by legal professional privilege. Accordingly, she made an order on 22 February 2018, the gist of which was, and is, that this case should now be allocated to a different judge and that there should be a further hearing (in the event, today’s hearing) at which the new judge would “consider the future conduct of this matter, to include the process by which the court shall determine the admissibility or inadmissibility of the information provided by [the paralegal]”. All that was done on an assurance recited in the order of 22 February 2018 by the wife that she would issue the application to set aside the order of 11 December 2017, of which she had already sent an unissued copy to the husband’s then solicitors under cover of a letter dated 16 February 2018.

7.So, we come to today. There is a number of reasons why I feel quite unable in any substantive way to begin to resolve any of these issues of admissibility today. They are, in no particular order, first that, unfortunately, the official transcripts of judgments given by Parker J on each of 11 December 2017 and 22 February 2018 are not yet available, so I do not know at all what her reasons were for dismissing the application to set aside the underlying consent order made in March 2014, nor do I know any reasons or observations made by her during the course of the hearing of 22 February 2018. Second, and I do not intend the least reproach or disrespect by this comment, I do not feel today sufficiently informed as to the relevant legal framework. The law in relation to legal professional privilege is complex and still developing and evolving, and quite intense consideration may require to be given to it. Third, very provisionally, I feel today that sooner or later a judge is likely to have to read these documents and information and material before ruling on their admissibility, unless Mr Marshall is able to persuade the court that the rules in relation to legal professional privilege are so impregnable that, on the facts and in the circumstances of this case, the material simply cannot be seen by the court, even if (as to which I could only speculate) they were to reveal blatant fraud or other malpractice. Fourth, although somewhat technically, the fact is that despite the assurance which she gave to Parker J on 22 February 2018 the wife, in fact, has still not issued her application and so, at least formally, there is simply no application or matter before me at all today. So, for a combination of those reasons, I limit my consideration of this case today to the giving of directions only.

8.Clearly, this matter can and should only proceed further at all if the wife does now formally issue her application in Form N244, which she prepared in the correct form and dated 16 February 2018, but has simply failed, or neglected, or overlooked issuing. She gives me, after due explanation by me, a solemn undertaking and promise to the court that she will, by 4.00 p.m. on Friday, 29 June 2018 (just over a week), formally issue that application with the court and pay any required court fee and thereafter serve it forthwith upon the husband’s current new solicitors. The order will make crystal clear that the whole of the order which follows will only come into effect if and when the wife has so issued that application and served a sealed copy of the issued application upon the husband’s solicitors. There will then be some directions as to obtaining as soon as possible the outstanding transcripts of the judgments of Parker J, and also a full verbatim official transcript of the whole of the hearing of 22 February 2018. That hearing was apparently short, but an issue has already arisen today as to things which the judge is alleged by one side and denied by the other side to have said during the course of it.

9.Provided that the wife does issue her formal application as described, then I propose to list this matter before the President of the Family Division himself during the Michaelmas Term 2018 for a ruling as to whether or not the information and material supplied by the paralegal should be admitted into evidence. I will require Mr Marshall QC to file and serve in good time before that hearing a detailed skeleton argument, and bundle of all relevant authorities, dealing with the circumstances, if any, in which legal professional privilege can be breached and his submission as to whether in any circumstances, and if so what, the court should look at the disputed documents in this case.

10.It seems to me that the particular facts and circumstances of this case raise a novel and very serious point. The law is already familiar with situations such as the inadvertent or accidental supplying to another party to litigation of some privileged document. There is either a decided case, or, at any rate, a much discussed example, of a solicitor inadvertently enclosing with a letter to the other side some document such as his client’s own proof or an attendance note. The law in relation to such circumstances as between two firms of solicitors is probably now fairly clear. Then there are circumstances in which accidentally a document may actually come into the hands of the litigant himself or herself on the other side, and that situation is already the subject of some consideration and rulings.

11.In the present case, however, there does not appear to have been any accident. Rather, an employee (but not, apparently, a qualified solicitor or legal executive) of a firm of solicitors has, with deliberation, disclosed what, as I understand it, is prima facie privileged information. She did not, in fact, disclose it directly to the party on the other side. She disclosed it to the court itself. It was then the judge herself who, also with deliberation, disclosed it actually to the parties. The wife does not now possess this material as a result of an accident or mistake, or any underhand action by herself. She possesses it because the judge deliberately sent it to her. Further, we live in an era in which so-called “whistle blowing” is less frowned upon than it once was and in which, indeed, in many circumstances whistle blowing is now encouraged. But it is not difficult to see that if some employee of a firm of a solicitors can disclose what is otherwise prima facie privileged material, whether to the court or to the other side, the whole edifice of legal professional privilege might rapidly crumble. On the other hand, fraud is fraud, and my current understanding is that legal professional privilege cannot, in the end, withstand the unravelling of fraud or similar malpractices if (I stress if) they have taken place.

12.So, on my brief encounter with this case today, it provisionally seems to me that it raises new and grave issues in relation to one of the most cardinal areas of our law, namely legal professional privilege. For that reason, it seems to me, since, in any event, I cannot rule upon these issues today but must adjourn for the reasons which I have already given, that I should now direct that this difficult and interesting case is now considered at the highest possible level, namely that of the President of the Family Division.

Whilst, as referred to earlier, a Court can explore whether the legal professional privilege does not protect documents or information where there has been iniquity, if that’s something that can merely be taken into the hands of a whistle-blower, rather than following a judicial determination with argument and if need be evidence, then the issue of legal professional privilege becomes only as strong as the confidence a client has in those employees of the law firm working on the case.