This is a post inspired by a twitter conversation. It started as a general issue about children and approval hearings. During the course of the discussion it became clear that there were some claimant solicitors who as a matter of course would disclose the advice on settlement to the defendant. It went further some defendants request (and on occasion demand) a copy of the advices. How this practice developed is not clear. It is surprisingly widespread. It is wrong and those solicitors disclosing advices are, arguably, negligent. Certainly they are disclosing privileged information.
WHAT THE RULES SAY
It is important to note that the CPR only require disclosure of the Advice to the court.
Practice direction PD 21.6.4.
6.4 The court must be supplied with –
(1) an opinion on the merits of the settlement or compromise given by counsel or solicitor acting for the child or protected party, except in very clear cases; and
(2) a copy of any financial advice; and
(3) documentary evidence material to the opinion referred to at paragraph 6.4(1).”
Note there is nothing that requires the disclosure of the advice to the defendant. There is certainly nothing that overrides the law of privilege.
I cannot find a single document or text where the disclosing of legal advice to the defendant in these circumstances is advocated or condoned.
DOES IT MATTER?
- A lawyer doing this has divulged privileged material without proper authority and for no good reason.
- A defendant can always change its mind up until the court approval hearing. If the Advice reads “this is far more than you will get at court” or highlights the litigation risk the defendant can withdraw the offer.
- In Drinkall -v- Whitwood  EWCA Civ 1547 the defendant accepted an offer of settlement in relation to liability. They withdrew from that offer shortly before the claimant’s 18th birthday. The Court of Appeal held that the settlement was only a proposed settlement until approved by the court.
SO DON’T DO IT
It is not required by the rules (“court” does not mean defendant). It involves a fairly profound breach of privilege.