There is an interesting decision about the scope of legal professional privilege by the First Tier of the General Regulatory Chamber (Information Rights) in the Ministry of Justice -v- The Information Commissioner & Shaw EA/2015/0160.
The applicant made a freedom of information request in relation to exceptional case funding (“ECF”) under the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Some information was provided. However the Ministry of Justice withheld Powerpoint slides prepared by external counsel to advise the Legal Aid Agency on the ECF rules, claiming these were subject to legal professional privilege and thus exempt from disclosure.
The Tribunal found that the powerpoints were subject to professional privilege.
“We consider that the withheld material falls within s42(1) FOIA as being information in respect of which a claim of LAP could be maintained in legal proceedings. This is because:
a. We have considered the withheld information closely. The material includes advice relating to the obligations of the LAA under public law.
b. We are satisfied from reviewing the material that it was imparted by Counsel to its client within the LAA. We accept the Appellant’s reasoning as to there having been a relationship of confidence in this situation, as is usual between lawyer and client. There was a legal context, inasmuch as LAA caseworkers were being advised by external Counsel as to what the law requires and on how best to discharge their legal duties in respect of ECF applications.
c. Taking into account the policy behind LAP (as set out in ‘The Law’ section above), it seems reasonable to expect the privilege to apply where Counsel was providing materials as the basis for the presentation and would need to be able to do so in an environment of not holding back in the imparting what would be prudent and sensible.
d. Where the Commissioner argues that the primary purpose was generic training rather than advice, we are not persuaded that training does not include advising in this instance. We note in particular, that ‘advice’ includes telling the client the law, and may also include what should prudently and sensibly be done in the relevant legal context.5
e. If there is any implication from the Commissioner that ‘generic training’ – where Counsel made a presentation to a team rather than a few individuals – would necessarily mean that the information imparted was not advice, we have seen nothing to persuade us that this was so. 5 See paragraph 18 above. 11
f. The Second Respondent has made the point that a public authority could exempt itself from almost any request for information by using the services of Counsel or a solicitor to provide advice. We would note that in developing the doctrine, the Courts were mindful to ensure this was not so.6 The issue of whether the material falls to be covered by LAP clearly requires proper consideration of what LAP is7 ; with it being a question of fact as to whether a claim of LAP could be maintained in legal proceedings in relation to the particular material in question.”
RELATED POSTS ON PRIVILEGE
- Putting without prejudice on letters does not necessarily make them privileged.
- When does putting legal advice in a witness statement lead to waiver of privilege?
- Waiving privilege by mentioning legal advice in a witness statement: a case in point.
- Litigation privilege and the accidental disclosure of privileged documents.
- Waiving privilege in witness statements: another High Court decision.