A recent judgment of The Technology and Construction Court handed down by Mr Justice Akenhead on 15th March 2012 could have a major impact on the provision of legal advice to the construction and engineering sector - Walter Lilly & Co Ltd v Giles Patrick Cyril Mackay and DMW Developments Ltd.
Briefly, the issues turned on the appointment of claims consultants to give "contractual and adjudication" advice on an Architect administered building project which was over-running and the legal capacity of the personnel engaged by the claims consultant in performing the services for its client.
Legal advice privilege is basically the doctrine whereby advice from qualified practicing solicitors and barristers to clients is privileged i.e. cannot be disclosed to the judge or arbitrator.
It is now clear from the above decision that legal advice privilege does not attach to documents generated by a claims consultant. If a claims consultant does not engage a practicing barrister or solicitor to provide legal advice to a client those documents generated will need to be disclosed. It is important to note however that the judgment does not extend to whether litigation privilege (e.g. applicable where parties exchange "without prejudice" correspondence usually in an attempt to settle a dispute) could extend to these documents or if a claim consultant's documents in connection with adjudication are privileged. These are outstanding questions which need to be addressed by the Courts in the future.
In future, claims consultants need to make their scope of services clear as to responsibility for legal content by a practicing solicitor or barrister and their clients need to know if they are getting a legal advice service from legally qualified advisers.
If the position is unclear the claims consultant and its client may be very surprised to find all the advice is disclosable in subsequent Court or Arbitration proceedings.
Can you think of an embarrassing example? Here is mine:-
A claims consultant proffers advice as an expert on say the value of variations to the scope of works and produces a report. His advice is not that of a practicing solicitor or barrister interpreting the contract in question and dealing with the legal entitlement to variations in the first place but he advises on this legal aspect nonetheless. The matter goes to Court and his advice and report are disclosable. For example, there could be letters putting a gloss on weak points of claim which perhaps as a matter of law should be conceded from the outset.
Some implications from the above example?
- This approach is hardly in the cost saving spirit of the Pre - Action Protocol and the Overriding Objective governing subsequent Court proceedings and is likely to have a dramatic impact on cost awards.
- An expert's overriding duty is to the Court or Tribunal and not to his client and such an approach could result in breach of that duty.
- Consider the recent case of Jones v Kaney where it is now clear that Experts in litigation or arbitration proceedings can be sued for negligence arising from their conduct in such proceedings. Presumably it will be negligent to say things to one's client which upon subsequent disclosure could cause the client to lose the case or severely compromise his ability to win it and/or may cause the client to suffer a heavy cost award against it.
Perhaps most alarming are the questions left over to be answered another day. Could claims consultants documents not be within the protection of litigation privilege? Could claims consultants documents prepared in adjudication not be protected by privilege? The jury is still out (to use a phrase from the criminal law) and we will have to wait and see.