The recent decision of the Inner House of the Court of Session in the petition of the Scottish Legal Complaints Commission against Donald Murray and James McCusker examines the scope of the Scottish Legal Complaints Commission’s (“SLCC”) powers under statute to obtain documents which would otherwise be covered by legal professional privilege in the context of a third-party services complaint.
The petition arose in the context of a complaint against the respondents, a firm of solicitors, for work undertaken in respect of divorce proceedings. The complaint was brought by the party against whom the respondents had acted.
The SLCC served a statutory notice under the Legal Aid (Scotland) Act 2007 requiring delivery of the respondent’s case file. The respondents, on the advice of the Law Society, maintained that they were prevented from disclosing the file as it was protected by legal professional privilege.
Legal professional privilege
Legal professional privilege (“LPP”) exists separately and in addition to the general duty of confidentiality which requires a solicitor to keep their client’s affairs confidential. LPP is of importance as it allows clients to provide their solicitors with full and frank disclosure and for the solicitors to reciprocate with candid and up-front advice without the fear that such information could be used against them by an opposing party. As noted by Lord Rodgers in Three Rivers District Council v Bank of England  1 AC 610, LPP covers “…all communications made in confidence between solicitors and their clients for the purpose of giving or obtaining legal advice, even at the stage when litigation is not in contemplation. “
While the general duty of confidentiality may be overridden in the public interest, LPP is regarded as a fundamental right and so may not be overcome, even in the public interest, save within strictly defined circumstances. These circumstances are:
- Waiver: where a client waives their right to privilege e.g. by voluntarily disclosing otherwise privileged documentation. It is important to note that only the client, and not the solicitor, can choose to waive LPP.
- Recognised exception: for example, where the material is being used to shield criminal or fraudulent activity.
- Statute: LPP can be overridden by statute – a statute may override LPP explicitly or by necessary implication.
The petitioner’s case
All parties agreed that the documents contained in the case file requested by the SLCC fell within the scope of LPP. The SLCC’s position that the documents should be disclosed was advanced under two main headings. The first of these was a ‘non-infringement’ exception i.e. that such disclosure to a regulatory body would not infringe LPP. The second was that the provisions of the 2007 Act allow, in this situation, for LPP to be overridden.
The court’s findings
The non-infringement argument was swiftly rejected by the court, which found that there is a clear distinction between general duties of confidence and LPP and a non-infringement exception could not apply to LPP.
The petitioner’s case therefore turned solely on the issue of necessary implication.
The SLCC contended that the 2007 Act meant an override to LPP had to necessarily be implied into section 17 and Schedule 2. It was argued that to exclude material subject to LPP would leave the petitioner in a position whereby is could only obtain potentially relevant information if the client granted a waiver. It would also lead to a situation in which some complaints may be subject to less comprehensive examination than others simply by virtue of the identity of the complainer.
In its decision, the Inner House firstly recognised LPP as a fundamental right to which the courts have historically attached the greatest degree of importance. It was noted that, in order to imply an override of LPP into statute, the wording of the statute must make it so that LPP requires to be overridden for at least an important aspect of the legislation to achieve its purpose.
The court also noted that it is expressly stated in the explanatory note to the 2007 Act that "in making a request for information, the Commission is not given the right to override the existing rules of legal privilege". This led to a strong indication against waiver of LPP arising by necessary implication.
As a final matter of principle, the court reflected that it was not obvious why the investigation of a third-party services complaint required disclosure of material covered by LPP: the SLCC would often have at its disposal the file of the complainer’s solicitor, from which much information relating to the complaint might be gleaned.
In light of these considerations, the court was not satisfied that a statutory override of LPP must be read into the 2007 Act as a matter of necessary implication – accordingly, the petitioner’s case failed.
Implications for the future
The decision in SLCC v Murray reinforces the importance that the court places on the right of a client to assert their right to legal professional privilege. Although this specific case was in the context of a complaint to the SLCC, this decision will no doubt serve as a marker to guide the future attitude of the courts towards legal professional privilege and the general duty of confidentiality in similar contexts.
This article was co-written by Jonathan Walker, Trainee Solicitor.