D (A Child): Waiving professional privilege

"This is a care case with an interesting and unusual twist to it." So began the judgment of Lord Justice Ward in D (A Child) [2011] EWCA Civ 684.

The facts: When the child L (I'm not sure why, not for the first time, the initial referring to the child in the judgment differs from the initial used in the citation) was 6 weeks old he suffered a fracture of the mid-shaft of his left humerus, fractures of his ribs on both his left and right side and a fracture of the left tibia. The local authority obtained interim care orders and arrangements were in hand for a fact-finding hearing to be held, to establish the perpetrator, or the perpetrators, of the injuries.

In a witness statement dated 13th January 2011 L's Mother said that she did not know how L had received his injuries. However, having by then separated from the father, the mother applied on the 24th February for an injunction restraining the Father from molesting her, alleging, inter alia, that the Father had threatened to kill her if she spoke to her solicitor "about what has happened with L".

On the 25th February the Mother filed a further statement for the fact-finding enquiry in which she gave a very different explanation of L's injuries, clearly indicating that they had been inflicted by the Father. She explained how her change of heart had come about in the course of conferences with her legal team.

The Father asserted that in explaining her change of heart the Mother had waived the professional privilege which exists between solicitor and client so as to justify him in seeking disclosure of the attendance notes made by her solicitors and counsel at the various conferences.

The judge found for the Father and ordered that the Mother should serve all contemporaneous notes made by counsel during the conferences with Mother and all contemporaneous notes which were made by her solicitor during their meetings in the relevant period, such disclosure to include any notes made by her solicitor during the conferences with counsel.

The Mother appealed.

Held: It was common ground that the Mother's meetings with her solicitor and the conferences with counsel attracted legal professional privilege which only she could waive (paragraph 17). However, after "anxious deliberation", counsel for the Mother accepted that the Mother did waive that privilege because her witness statement could not be said to make only "glancing reference" to the conversations with counsel and solicitors. For example, she had stated that the questioning by her lawyers "made it easy to tell them what had happened".

Accordingly, the appeal turned on the "fundamental question", as Elias J. (as he then was) expressed it in Brennan v Sunderland Council [2009] I.C.R. 479 at [63]:
"whether, in the light of what has been disclosed and the context in which disclosure has occurred, it would be unfair to allow the party making disclosure not to reveal the whole of the relevant information because it would risk the court and the other party only having a partial and potentially misleading understanding of the material."

Counsel for the Father submitted that the unfairness to the Father consisted "in his not being able effectively to cross-examine the Mother about her veracity and about the evolution of her change of heart without being able to see the factual premises on which the advice was given to her and the manner in which her account of the events unravelled". Her primary point was that the balance was one for the judge to strike and that this Court should not interfere unless it has been demonstrated that he was plainly wrong in reaching the conclusion he did.

Lord Justice Ward found that there was no answer to that primary point. He said (at paragraph 23) that the judge's:
"immediate task was to find the material facts relating to the child's injuries and identify the perpetrator. In choosing to explain her shift in position as a consequence of advice she was given, the Mother undoubtedly did elaborate on the nature of that advice and explain the need for sustained questioning and demonstrations with the doll to elicit her story. It is, therefore, a legitimate concern that she might be saying what she believed her interrogators wished to hear rather than what she knew to be true. The undesirability of breaching confidentiality must be balanced against the unfairness to the Father if the cloak that ordinarily concealed the discussions with her lawyers was not lifted. Having made public, at least in part, the circumstances in which she bared her soul to her lawyers, she must be left bare for cross- examination."

Accordingly, Lord Justice Ward was satisfied that the judge had arrived at the correct result, and therefore dismissed the appeal. He concluded with a warning (at paragraph 24):
"Counsel and solicitors will be aware (or ought to be aware) of the fact that advice may have been given to prompt the change of heart or change of attitude and they should be on guard to protect their client from revealing that advice either in the written evidence or when giving oral evidence to the court."

Lord Justice Rimer and Lord Justice Elias gave consenting judgments.