The High Court has confirmed that communications between a party and his construction claims consultants (in relation to a claim for extensions of time) were not subject to legal advice privilege: Walter Lilly and Company Limited v. Mackay and DMW [2012] EWHC 649 (TCC). This was because the claims consultants had not been retained as solicitors or barristers, even if certain individuals dealing with the matter were qualified barristers.
The court applied the Court of Appeal decision in R (on the application of Prudential PLC) & Anor v Special Commissioner of Income Tax & Anor [2010] EWCA Civ 1094 confirming that legal advice privilege does not apply "in relation to any professional other than a qualified lawyer: a solicitor or barrister or an appropriately qualified foreign lawyer" (click here for more on that decision). Prudential's appeal to the Supreme Court will be heard in November.
The judgment in Walter Lilly did not address litigation privilege, which applies where litigation is in reasonable prospect and (unlike legal advice privilege) can cover third party communications. It remains an open question whether advice and other communications from claims consultants may attract such privilege. The court noted that there was "little authority" on this issue, and policy issues might have to be considered if and when the question arose in another case.
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