Walter Lilly & Company Limited v Mackay & Ors 2012 EWHC 649 (TCC), 15 March 2012
This was an English case involving a dispute in connection with the construction of a house, ultimately to be owned by the 1st Defendant, Mackay. The Claimant was the contractor. There were substantial delays in the building works and Mackay instructed claims consultants, Knowles Limited (“Knowles”), to provide “contractual and adjudication advice“. Knowles was retained until 2008 and the Claimant subsequently commenced proceedings against Mackay. An issue that arose in the proceedings was whether correspondence between Knowles and Mackay was protected by legal professional privilege and therefore not to be disclosed. There was no suggestion that Knowles as a firm was qualified or certified to provide legal advice. However, it was argued that a client who in good faith instructs an organisation or person, which he mistakenly believes is a qualified solicitor or barrister and then receives legal advice from them, is entitled to privilege protection.
The Court found that Knowles did not hold itself out as a firm of solicitors or group of barristers, albeit that it did employ some lawyers. It was not retained to provide legal advice as such. The reality, the Court said, was that the Defendants had retained Knowles not as barristers, but as an organisation to provide them with claims and project handling services. The fact that Mackay honestly understood the two people he was dealing with at Knowles to be qualified and practising barristers and solicitors was immaterial because their employer was not retained by the Defendants to provide services of barristers or solicitors. The protection of privilege is not, the Court said, intended to extend to the relationship between a person and another who is not in fact a qualified and practising lawyer. Neither legal professional privilege or legal advice privilege applied in this case as between the Defendants and Knowles and the documents in question should have been disclosed.
As the Court pointed out, it should be noted that the decision relates only to legal professional or legal advice privilege and not litigation privilege, where there remains a possible issue as to whether the advice and other communications given by the claims consultants in connection with the adjudication proceedings are privileged.