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Disclosure of Unhelpful Material Disclosed to Counsel in Family Proceedings
1. The Professional Practice Committee of the Bar Council has had brought to its attention a number of queries From the practicing bar concerning the duty, or otherwise, to disclose material given to them either in conference or in documents generated for the purposes of family litigation such as witness proofs which undermines the case for their client or which reveals matters which may be detrimental to the welfare of a child with whom the case is concerned.
2. The problem gives rise to a conflict between the duty of disclosure in family law proceedings and the nature of Legal Professional Privilege.
3. Duty of Disclosure
(1) The Practice Direction underpinning the general duty of disclosure is the Practice Direction: case Management issued by Sir Stephen Brown P on 31 January 1995. in particular this states:
‘(4) It is a duty owed to the court both by the parties and by their legal representatives to give full and frank disclosure in ancillary relief applications and also in all matters in respect of children.”
(2) This goes wider than, but must be seen in the context of, the duty in all litigation under the old RSC Ord 24, r 13 and now CPR 31.17, which in its first part reflects the definition of standard disclosure in CPR 31.6, which is in the following terms:
Standard disclosure requires a party to disclose only—
(a) the documents on which he relies; and
(b) the documents which
(i) adversely affect his own case;
(ii) adversely affect another party’s case; or
(iii) support another party’s case; and
(c) the documents which he is required to disclose by a relevant practice direction.”
(3) The Code of Conduct of the Bar also states:
“A barrister has an overriding duty to the court to act with independence in the interests of justice: he must assist the court in the administration of justice and must not deceive or knowingly or recklessly mislead the court” [para 303]
4. The wider duty of disclosure has led to a practice in which all matters concerning issues in family law cases are routinely disclosed, the client being advised that there is no possibility of preventing disclosure even of matters which would seriously undermine the case.
5. Privilege
However all counsel must be aware that even the wider duty of disclosure in family proceedings and the requirement of para 303 of the Code of Conduct does not affect the absolute nature of Legal Professional Privilege. Counsel must come to his own conclusion as to whether Legal Professional Privilege arises in each case but broadly such privilege always attaches either to (a) discussions and information passing between counsel and client concerning the case and (b) documents generated as a result of legal advice or instructions (such as witness proofs) whether in contemplation of a case or in the course of it.
6. Subject to the qualification in Cox v Railton (below) such Legal Professional Privilege can only be waived by the client. The privilege attaches to all such communications and documents even though the information disclosed to counsel may reveal facts which adversely affect the welfare of a child [see S local Authority v B [2000] 2 FLR 161].
7. There is one exception to the rule of privilege in this area: that is where the disclosure amounts to a crime. This is best stated in the case of R v Cox and Railton [1884] QBD 153. Within the judgment of Stephen J appears this short but clear passage: ‘The reason on which the rule [of Legal Professional Privilege] is said to rest cannot include the case of communications, criminal in themselves, or intended to further any criminal purpose, for the protection of such communications cannot possibly be otherwise than injurious to the interests of justice, and to those of the administration of justice. Nor do such communications fall within the terms of the rule.’ ([1884] QBD 153 at 167).
8. The following principles therefore apply:
(a) If the information given to counsel is potentially subject to disclosure under the general duty in family cases (i.e. that it is relevant to an issue in the case as indicated in paragraph 3 above) then it must be disclosed unless Legal Professional Privilege attaches to it.
(b) Legal Professional Privilege attaches to all communications between counsel and the client, whether written or oral, and all documents produced as a result of the instructions of the client and the advice of his legal representatives in contemplation of or during the case. It may apply in other circumstances and it is the duty of counsel to decide whether LPP applies in each case.
(c) If counsel is in doubt as to whether LPP attaches, he may apply for a decision to a Judge at a without notice hearing and should do so.
(d) If LPP applies to the material in question, it must not be disclosed without the permission of the client.
(e) If Counsel considers that to proceed with the case, knowing of the confidential material, would lead to him breaching para 303 of the Code of Conduct, he must withdraw rrom the case; if not, his duty is to continue to represent his client.
Professional Practice Committee
Bar Council
December 2006
