Objections to Inspection of Specific Documents

Memorandum

With reference to the documents in control which we do not object to being inspected:

1. Claimant's proof of evidence dated 26 July 2019.

This document is not appropriate for inspection. It is the communication between the client and the solicitor for the purpose of receiving legal advice and as such comes within the scope of legal advice privilege(Civil Aviation Authority v. R Jet2 ([2020] EWCA Civ 35). At this stage, it would be appropriate to put this entry in the second list of documents in control but objection to inspection.

2. Reports to the Claimant dated 27 June 2019 and to the Claimant’s solicitors dated 7 February 2020 from Mrs Louise Tan, an expert.

At this point, it is appropriate to take objection to inspection of expert report dated 7 February 2020. Instead of putting this entry here, it should be moved to the second list of documents that are objected to being inspected. The reason given for this should be litigation privilege. Litigation privilege can be used to not open this document for inspection because this privilege is provided to experts' reports prepared for the dominant purpose of the litigation or adversarial proceedings. The report to the claimant dated 27 June 2019 does not come within the scope of litigation privilege because it was not sourced by the lawyer, rather it was privately obtained by the claimant.

With reference to documents in control which we object to being inspected as per (Rule 31.19):

1. Documents passing between the Claimant's solicitors and the Claimant.

The note with this entry states that these documents are covered by legal professional advice privilege and for that reason we object to their inspection. However, this entry is very wide and non-specific. There are many documents that pass between solicitor and claimant and not all will be covered by legal advice privilege. For instance, correspondence with other professional advisers, including insurers, do not come within the definition of legal advice privilege. Similarly, documents obtained from third parties that provide evidence and any instructions to and correspondence and discussions with expert witnesses, do not come within the scope of legal advice privilege. Legal advice privilege is related to privileged documents that record confidential communications between lawyers and their clients for the purpose of giving or obtaining legal advice. Any other communication or documents passing between them would not come within the definition of legal advice privilege. To explain this further, legal advice is where advice is given in relation to the law; or in relation to an investigation or to an inquiry which might become the subject of a judicial review; or in relation to something which could impact on public or private rights and obligations or which could give rise to criticism of the client or affect the client's reputation. The courts will generally apply the ‘dominant purpose’ test to assess whether the communication between the client and the lawyer is properly classified as legal advice privilege; this test assesses whether the giving or seeking of legal advice is be the dominant purpose, and not just a purpose, of a communication between the lawyer and client (Civil Aviation Authority v. R Jet2 ([2020] EWCA Civ 35). Moreover, it has been held that all communications between lawyers and a client do not come within the scope of legal advice privilege (Three Rivers Council v. The Governor and Company of the Bank of England (No 5) ([2003] EWCA Civ 474). Considering this, a broad objection to inspection of all documents passing between claimant and solicitor may not be justifiable.

2. The Claimant’s builders’ receipted invoices for repairing the fire damage and Claimant’s accounts for the 2 years before the fire:

The note with this entry that the documents are covered by legal professional advice privilege as documents supplied by the claimant to his solicitor is not appropriate. This document is not a privileged document because it is not a record confidential communications between the solicitor and client for the purpose of giving or obtaining legal advice. Only those documents that are described as communications between lawyers and clients for the purpose of giving or obtaining legal advice come within the definition of legal advice privilege. These documents are not of that nature and therefore cannot be classified as privileged.

3. Letter from Claimant's solicitors to Defendant's solicitors dated 23 October 2019.

The note with this entry states that the objection to the inspection of this document is because the document was made without prejudice. This is an inappropriate note with the entry and may not be continued as it is because it relates to a letter by the claimant’s solicitor to the defendant’s solicitor in the nature of offer of settlement. This comes within the definition of "without prejudice" correspondence, which is defined as correspondence related to settlement negotiations between the two parties. This document is not usually privileged for the purposes of disclosure, although this correspondence cannot be produced to the court before judgment. In order to justify the note with this entry, exceptional circumstances will have to be established by us.

4. Claimant’s diary entry for 11 January 2019.

The note with this entry states that objection to its inspection is based on the confidential nature of this information. This diary entry is in the nature of private information; however, courts are restrictive about confidential information in context of disclosure (CF Partners (UK) LLP v Barclays Bank plc, Bryggpipan AB [2014] EWHC 3049 (Ch)). Information can be said to be confidential if it is clear, not trivial and inaccessible (Force India Formula One Team Ltd v 1 Malaysia Racing Team [2012] EWHC 616 (Ch).

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