Impact of FOIA on legal professional privilege

An intriguing summary has emerged on Lawtel (subscription required) of a decision of the Chancery Division (John Jarvis QC) in a case called Hallows v Wilson Barca LLP, which suggests that the duties imposed on public bodies by the Freedom of Information Act 2000 (FOIA) can be relevant to the common law doctrine of legal professional privilege.

The decision appears to hold that lawyers who obtain documents from public bodies for the purpose of litigation (which would therefore normally be protected by litigation privilege) need to bear in mind the existence of FOIA and make that purpose clear otherwise they will be taken to have waived privilege.  Whether, on close inspection of the full judgment, this turns out to be a true description of the ratio decidendi remains to be seen, the case seems worth noting in any event.

The issue arose in the context of a claim brought by the claimant (C) against the solicitors (D) who had acted for him to register title to a plot of land.  C alleged that D had failed to register the fact that the land benefitted from certain rights of way which would materially affect the value of any development on the land.  C’s new solicitors in that claim (S) sought the advice from the local planning authority (LPA) on whether planning permission would be likely to be granted for any development on the land.

In making the request, S said it was doing so on a confidential basis, but did not mention it was being made in connection with the litigation between C and D.  The LPA provided the advice sought, which subsequently found its way into D’s hands via a FOIA request by D.  C sought an injunction restraining D’s use of that information in the proceedings between them on the basis that it was legally privileged.

The court agreed that the advice was prima facie protected by litigation privilege but said that requesters like S had to bear in mind that the LPA was subject to duties imposed by FOIA to provide information to the public.  Since no indication had been given that the advice was sought in the context of litigation, the court said that S had accepted that the information could come into the public domain by virtue of the local authority’s duties under FOIA and had therefore necessarily and impliedly waived any privilege which had existed.

In the alternative, the court said that even if it had accepted that privilege could still be maintained, it would not have been appropriate to restrain D from relying on the advice.  The way in which S sought advice was said to have run the risk that any privilege would be waived and D had also not acted improperly in making the request it did under FOIA or in reading the information once it had received it.

As noted above, the full analysis and implications may only become apparent if and when the full judgment becomes available and this was of course a decision in the context of private law proceedings rather than under FOIA.  Nonetheless, legal professional privilege is a common law doctrine and, unlike FOIA, is absolute in the protection it affords against disclosure.  The suggestion that the Act could influence the common law in this way is a very interesting one.

In practical terms, for those involved in planning law the decision sits alongside the decision in Tidman v Reading BC [1994] 3 PLR 72 (that LPAs do not owe a duty of care in providing such advice) as another important point for those making such requests to bear in mind.

Paul Greatorex