England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(Mr Justice Johnson)

		Royal Courts of Justice Strand London WC2 Thursday, 8th March 2001

1. LORD JUSTICE THORPE: There are proceedings in the Family Division between Mr and Mrs Curtis. They have been going on for a long time. They seem to be unusually acrimonious. There is a dispute about the father's contact, and the present scheme is that the court's investigation shall be divided into a preliminary phase, when the judge will carry out an investigation of the mother's allegations of the father's very violent and abusive attitude towards her and all the risks that may flow from the grant of his application for contact, risks, I suppose, to the child as much as to her. The Official Solicitor is in the case on behalf of the child.
2. This is an interlocutory appeal that raises a short point. The parties were in front of Johnson J on 12th February. He was asked to determine whether, for the purposes of the trial of the preliminary issue, the mother should be entitled to introduce into evidence and rely upon an affidavit made by the father's former solicitors to take themselves off the record. The affidavit in question was sworn by Nicola Fletcher, a solicitor employed by Messrs Mishcon de Reya, on 19th September 2000. In that affidavit she recorded telephone conversations with her then client on 9th and 10th August 2000, a telephone conversation that she had with him on 5th September and a telephone message that he left on the machine of her conveyancing colleague of the same day. That affidavit supported a successful application by Mishcon de Reya to come off the record and it terminated their professional relationship with the father, who thereafter instructed those now acting for him in the continuing proceedings.
3. It seems that inadvertently Mishcon de Reya served that affidavit on Messrs Bindman & Partners, who were then acting and who continue to act for the mother. They, in turn, passed the affidavit to their client. As a matter of procedure, applications to come off the record are not on notice and there was no need for the supporting affidavit to have been served on Messrs Bindman & Partners, and the rules of the court are that it should not have been done. It was the sort of minor aberration that happens, even in the best conducted solicitors' office.
4. The trial of the preliminary issue is fixed to commence on Monday next, with a three day time estimate. The substantive hearing is fixed for 25th June. Johnson J, having heard Miss Parker for the mother and Mr. Everall for the father, came down narrowly, as his judgment reveals, against admitting the affidavit of Miss Fletcher into the contact proceedings. He accordingly drew an order which is in these terms:

"1. The affidavit of Nicola Catherine Fletcher, sworn 19th September 2000 together with Exhibit 'NCF\1' filed by the respondent's former solicitors, Messrs Mishcon de Reya, be placed in a sealed envelope marked 'not to be opened without leave of the judge'... and be retained separately on the court file.

2. The [wife] do deliver up forthwith to her solicitors any copies of the aforementioned affidavit and exhibit in her possession, custody or control, and confirm to her solicitors that no further copies are retained.

3. The petitioner by herself or through anyone else, and any other party to the proceedings, be prevented from referring to the aforementioned affidavit for the purposes of contact proceedings or any other proceedings between the parties (save for the purposes of an appeal in respect of this order).

4. The petitioner's application for leave to appeal is refused.

5. Costs reserved."

5. An application for permission to appeal was lodged with this court soon afterwards and a direction was given for an oral hearing on notice, with appeal to follow if permission granted. In order to make that renewed hearing effective, it obviously had to be fitted in prior to Monday next, the 12th, and not without some difficulty, arrangements were made for it to be listed this afternoon. Fortunately, Miss Parker Q.C. and Mr. Everall Q.C. have been able to make themselves available to argue their respective corners.
6. The points that have been canvassed before us today are broadly the points that were canvassed before Johnson J, although there have been certain significant developments during the course of this hearing. But the judge concerned himself principally with two issues. First of all, was the communication on the telephone, or the communications on the telephone, privileged communications, in the sense that they were protected by legal professional privilege, since they were communications carried out with a view to obtaining legal advice? Secondly, he investigated the assertion that within the communications there was the commission of a criminal offence, which would carry the communication outside the safe harbour of legal professional privilege. The judge posed the first question thus:

"Did the father say what he did and act in the way that he did, as described in his former solicitor's affidavit, 'for the purpose of obtaining legal advice'? I have not found this an easy question, and my mind has moved under the persuasion of Miss Parker QC and Mr. Everall QC. Why was he talking to the solicitors at all? The answer seems to me to be because he was concerned about the manner in which they were carrying out his instructions, and indeed about the charge that they were proposing to make for doing so. No doubt most clients dissatisfied with a professional adviser would have found themselves able to express themselves angrily and strongly and effectively without descending to the depths to which, so it is suggested, the father descended in dealing with this lady solicitor and her secretary.

My conclusion is that what he was doing was all part of his attempt to get them to achieve what he wanted, and I hold that the regrettable incidents described by the solicitor in her affidavit were occasions covered by legal professional privilege."

7. I do not find within the passage cited any very clear reasoning for the judge's conclusion. The affidavit of Miss Fletcher reveals that, in the first and innocuous conversation of 9th August, the father had informed her that he did not intend to instruct Messrs Mishcon de Reya to deal with the sale of the former matrimonial home because he was unhappy with the level of the firm's charges, and that is the sort of conversation which not infrequently occurs when, at the outcome of ancillary relief proceedings, either an order is made or an agreement is reached that the former matrimonial home should be sold in order to enable the available capital to be redeployed between the separated spouses. In those situations there is a clear divide which can be drawn between the contentious work within the ancillary relief proceedings which has culminated in the court order, and the consequential non-contentious work that needs to be done to give effect, by conveyancing and sale, to the court's adjudication. Very often the conveyancing work will be done by the firm that has had the conduct of the litigation but that is by no means the universal rule, and ever since charges for conveyancing ceased to be the subject of a strict scale, litigants have frequently either used a specialist conveyancing firm or looked about for good value in the market before deciding where to place the business. So there was nothing within the conversation of the 9th that was in any way out of place.
8. The first conversation of the 10th was the response to the husband's request for a quote from Messrs Mishcon de Reya. A figure was given to him by Miss Fletcher which sent him into a state of great anger. He demanded to know the name of the individual within the firm who had priced the job. He said that once he had his name that was all he needed and that the individual would have to sit back and see what happened. Miss Fletcher, confronted with an unusual situation, said that she wished to discuss the matter with a partner and would return to him. When she did she explained that she was not prepared to name the individual who had quoted the price and that attracted this from the father. He said that he wanted the name because he wanted to "rip someone's throat out". He thereafter became very abusive.
9. The subsequent conversation relevant to the judge's determination came on 5th September when the father became extremely angry, extremely abusive and uttered some extreme threats as to what he would do to the conveyancer if and when he got his hands upon him. That was all in the context of his anger that contracts in relation to the sale had not actually been sent out to prospective purchasers.
10. So within the context of the authorities which are agreed by counsel to apply to this question, namely the decisions of this court in Balabel and Another v Air India [1988] 1 Ch 317 and R v Manchester Crown Court, ex parte Rogers [1999] WLR 832, there is a question as to whether or not the contents of these conversations were privileged. Both counsel have relied on different passages from the judgment of Taylor LJ in the first of those cases. Mr. Everall particularly relies on the passage at page 330 and Miss Parker on the passages at pages 331 and 332. Mr. Everall stresses that at the end of his judgment Taylor LJ approved, with addition, this formulation made by the Master:

"Once solicitors are embarked on a conveyancing transaction they are employed to ensure that the client steers clear of legal difficulties, and communications passing in the handling of that transaction are privileged (if their aim is the obtaining of appropriate legal advice) since the whole handling is experience and legal skill in action and a document uttered during the transaction does not have to incorporate a specific piece of legal advice to obtain that privilege."

11. In my judgment, the phrase added to that formulation by Taylor LJ, namely if their aim is the obtaining of appropriate legal advice, is decisive of the issue here. The two communications are very clearly stamped with very simple purposes, the first to make a deal at a price that would seem to this businessman value for money, and the second to press the solicitors to complete the job. It does not seem to me that either of those characteristics can be said to be anywhere near the aim of obtaining appropriate legal advice. In my judgment, I would answer the first question posed by Miss Parker in the negative.
12. But perhaps the answer to the second question is even clearer. Is this a criminal act? There can be no doubt at all that the words that the father used on 10th August, namely that he wanted to rip someone's throat out, are easily capable of construction as a threat to kill. Section 16 of the 1861 Act would make that a criminal offence, provided that the speaker intended it to be taken as a threat to kill. Mr. Everall says that, in reality, this was just the sort of colourful language that this individual was known by all to use and that nobody would have taken it with any seriousness. That seems to me to be very much a matter that would fall for determination by a jury on the evidence if this episode had been made the subject of prosecution. What seems to be even clearer is the terms of section 43 of the Telecommunications and Broadcasting Act 1984. In the court below Miss Parker relied upon subsection 1(b), but in the interim she has obtained the text of the whole section, which reveals that section 43(1)(a) is of much greater application to the facts of this case, for it says:

"A person who -

(a) sends, by means of a public telecommunication system, a message or other matter that is grossly offensive or of an indecent, obscene or menacing character . . .

shall be guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding level 5 on the standard scale or both."

13. Mr. Everall, who has had the difficult job of upholding the judge and whose difficulty has been intensified by the fact that Miss Parker did not produce section 43(1)(a) until during the course of argument has, in the end, had to concede that it is very difficult for him to maintain that the grossly offensive, highly indecent, obscene, and clearly menacing statements made by the father to his former solicitors are not caught by section 43(1)(a).
14. Is the fact that the communication itself was a criminal communication sufficient to carry it out of the protection of legal professional privilege? The answer to that question lies in the old case of R v Cox and Railton [1884] QBD 153. Within the judgment of Stephen J at page 167 appears this short but clear passage:

"The reason on which the rule is said to rest cannot include the case of communications, criminal in themselves, or intended to further any criminal purpose, for the protection of such communications cannot possibly be otherwise than injurious to the interests of justice, and to those of the administration of justice. Nor do such communications fall within the terms of the rule."

15. Mr. Everall has said that Miss Parker has failed to produce any subsequent authority embracing communications criminal in themselves, as opposed to communications intended to further a criminal purpose. However, I do not think that that submission begins to turn the force of this clear passage. These were clearly communications, criminal in themselves, and good sense, as well as that authority, frees them from the cloak of legal professional privilege. I, for my part, am relieved that this investigation of legal principle and authority brings me to this conclusion, since the order made by the judge has a highly artificial character. In ordinary language, it seems to me that the cat so generally out in the open could not possibly be re-bagged. I do not see how the mother could have any sense of confidence in the outcome of the preliminary hearing when her case of the father's extremely disturbed emotional and psychological behaviour is denied and, insofar as admitted, said to be confined to the relationship between the two of them. How she could have any confidence in the outcome of those proceedings, if debarred from putting before the court evidence of precisely similar behaviour in the course of his relationship with his professional advisers, I do not understand. I equally do not understand how the Official Solicitor could discharge his function in relation to the child unless he had access to that information. Judges in the end are an important element within the bastions of child protection. It is important that judges should have access to all relevant information before arriving at their judgments. I find it hard to see how this case could have progressed to a satisfactory outcome, with material such as this already on the court file within the proceedings, and already recited at length in the course of a judgment of one of the judges of the Division, albeit not the judge who would necessarily conduct either the preliminary hearing or the substantive trial.
16. For all those reasons I think, with respect to Johnson J, that on this occasion he reached the wrong conclusion. I think that he should have admitted the evidence. I would allow the appeal. However I would emphasise that at least one ground upon which I reject the claim to legal professional privilege was never advanced in the court below. Had it been advanced Johnson J might well have reached a different conclusion.
17. LADY JUSTICE HALE: I have every sympathy for Johnson J in this case which he clearly found difficult. The leading case relied on by both parties is Balabel v Air India [1988] Ch 317. Taylor LJ stated the issue thus at page 321:

"whether such privilege extends only to communications seeking or conveying legal advice, or to all that passes between solicitor and client on matters within the ordinary business of a solicitor."

18. That case concerned a conveyancing transaction just as this. At page 330 he went on:

"Although originally confined to advice regarding litigation the privilege was extended to non-litigious business. Nevertheless, despite that extension, the purpose and scope of the privilege is still to enable legal advice to be sought and given in confidence. In my judgment, therefore, the test is whether the communication or other document was made confidentially for the purposes of legal advice. Those purposes have to be construed broadly. Privilege obviously attaches to a document conveying legal advice from solicitor to client and to a specific request from the client for such advice. But it does not follow that all other communications between them lack privilege. In most solicitor and client relationships, especially where a transaction involves protracted dealings, advice may be required or appropriate on matters great or small at various stages. There will be a continuum of communication and meetings between the solicitor and client. The negotiations for a lease such as occurred in the present case are only one example. Where information is passed by the solicitor or client to the other as part of the continuum aimed at keeping both informed so that advice may be sought and given as required, privilege will attach.... Moreover, legal advice is not confined to telling the client the law; it must include advice as to what should prudently and sensibly be done in the relevant legal context."

19. At page 331 Taylor LJ said:

"It follows from this analysis that those dicta in the decided cases which appear to extend privilege without limit to all solicitor and client communication upon matters within the ordinary business of a solicitor and referable to that relationship are too wide."

20. He concluded at page 332:

"As indicated, whether such documents are privileged or not must depend on whether they are part of that necessary exchange of information of which the object is the giving of legal advice as and when appropriate."

21. The answer to the issue in the Balabel case was therefore somewhere in between the two extremes posited at the beginning.
22. That was the difficult territory with which Johnson J was concerned. I have to say that most of the cases tend to accept that most communications containing anything of substance between solicitor and client are privileged. Of course, it is difficult to regard these communications as containing anything of substance other than menaces, threats and obscenities. I would have been prepared to agree that they passed over the line from that which could properly be the subject of privilege and fell outside it. But I am satisfied that these communications, all of them, fall within that part of the rule which has been called an exception, which relates to communications which are either "criminal in themselves or intended to further any criminal purpose" as laid down in R v Cox and Railton [1884] 14 QBD 153, 167. All of these communications were criminal in themselves within the meaning of section 43(1)(a) of the Telecommunications and Broadcasting Act. There is a case to answer that the communication about ripping the throat out was a threat to kill, contrary to section 16 of the Offences against the Person Act 1861.
23. For my part, therefore, I do not think that these communications were covered by legal professional privilege. It seems to me that no great coach and horses is driven through the important principle of that privilege by such a decision. The spectre was raised of solicitors being asked to disclose the demeanour of their clients when they came to seek advice. One example was personal injury solicitors dealing with their client, who might then be asked whether the client had come in with a limp that he claimed he had suffered as a result of his accident. That would of course be a spectre which would haunt these courts for many years to come. The exception of criminal conduct is quite specific and an exception which, by no stretch of the imagination, contravenes the basic purpose of the existence of this privilege. For these reasons I agree that the appeal should be allowed.
Order: Appeal allowed with costs here and below. (Order not part of the judgment of the court)