Legal professional privilege

May 16th, 2017 by James Goudie KC

In Holmes v Information Commissioner and Cumbria County Council, EA/2016/0256  the First-Tier Tribunal upheld the Commissioner’s decision refusing to order the County Council to disclose a Counsel’s Opinion.  Regulation 12(5)(b) of the Environmental Information Regulations was engaged, but the balance of public interest was against disclosure.  Nor had legal professional privilege been waived by the County Council, notwithstanding that the Committee Report had stated that “expert legal advice has been sought from counsel on the matter and counsel has confirmed that this is an appropriate way to proceed”.

The FTT said:-

“24.  The request was, boldly, for disclosure of information subject to legal professional privilege. That does not serve automatically to engage the exception, but we note that the advice concerned was obtained in relation to a contentious decision and that, at the time of the request judicial review proceedings were considered likely. Those proceedings are now in train so the advice remains of value. We acknowledge the strength of the arguments for obtaining and holding confidential legal advice in such circumstances and we are satisfied that the information requested in this case touches on “the course of justice” so as to engage regulation 12 (5) (b) EIRs.

25. Turning first to the Appellant’s submission that the Council had waived its privilege by the manner in which the legal advice it had obtained was referred to in the Committee Report, we agree with the Appellant that this is a question of fact to be determined on the evidence before us. Following the approach of the First-tier Tribunal in Kirkaldie we have read the withheld material contained in our Closed Bundle and we are satisfied that the very brief reference to the effect of Counsel’s Advice in the Committee report cannot be described as a summary of the totality of advice given by Counsel. In the circumstances, we agree with the Decision Notice that the substance of the advice has not been made public or lost the quality of confidentiality and we have no hesitation in upholding the Decision Notice to the extent of rejecting the Appellant’s case that the Council waived its privilege.

26. With regard to the balance of public interest which falls to be applied under regulation 12 (1) (b) EIRs, we agree with the Decision Notice’s assessment at paragraphs 27 to 34 of the factors to be taken into account on both sides of the balancing exercise. The presumption of disclosure in the EIRs means that we do not start with the scales weighted evenly but with some weight on the side of disclosure.

27. The Appellant’s case is that the weight in favour of disclosure is to be increased by the impropriety of Council officers. …

28. … we agree with the Appellant that a case involving corruption or serious impropriety would give added weight to the case for disclosure, … We remind ourselves that the Appellant bears the burden of proof to satisfy us on the balance of probabilities of his case and we conclude that we are not satisfied on the evidence before us and to the relevant standard of proof that there is a serious cause for concern here which deserves to be considered in the public interest balancing exercise.

29. On the side of maintaining the exception is the considerable weight of the decision of a Three Judge Panel of the Upper Tribunal, chaired by the then-Senior President of Tribunals, in DCLG v Information Commissioner & WR [2012] UKUT 103 (AAC) (referred to at paragraph 24 of the Decision Notice), underlining the importance of the system of legal professional privilege to a fair and proper judicial process. Mr Holmes’ submission that there would be no injustice to the Council in releasing its legal advice to the world at large (which would be the effect of disclosure under FOIA or EIRs) was, we found, a surprising one for a retired solicitor. The Upper Tribunal considered in DCLG that weight should be attributed not only to the need to maintain legal professional privilege in that case (where Judicial review proceedings had also been threatened) but also to the more generalised risk that disclosure would weaken the confidence of public bodies and their advisers in the efficacy of the system of legal professional privilege.

30. We agree with the Decision Notice that, in the circumstances of this case, the course of justice would be adversely affected by the disclosure of the Council’s legal advice because it would place the Council at a disadvantage in legal proceedings which were reasonably anticipated at the time of the request and have since come to pass. We also find that the public interest generally favours maintaining the exception so as to withhold from disclosure information subject to legal professional privilege. There may be exceptions to that approach, but we are not satisfied that this is such a case.”

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