England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT

		Sitting at: Manchester Civil Justice Centre 1 Bridge Street West Manchester M3 3FX
		9th April 2010

HHJ Stewart QC:

1. This is an appeal by Mr Balu against a decision of the Family Health Service Appeals Authority ("FHSAA"). On 2 December 2009 the FHSAA gave a written decision confirming a decision given orally on 13 November 2009 that two retrospective notes written by Mr Balu giving his account of consultations with the patient Mrs Walsh on 26 August 2008 and 26 September 2008 ("the August note" and "September note") were not to be excluded from evidence on grounds of legal professional privilege.

2. The proceedings before the FHSAA arise out of allegations made by Mrs Walsh that Mr Balu inappropriately touched her breasts during the consultation on 26 September 2008. He denies this. The appeal to the FHSAA was from a decision of the Professional List Panel (PLP) of the Dudley Primary Care Trust ("the PCT") constituted for the purposes of an oral hearing pursuant to regulation 10(8)(e) of the National Health Service (Performance Lists) Regulations 2004.

3. On 21 July 2009 the PLP announced its decision (confirmed by written decision from August 2009) that it was satisfied that the PCT's case was proven to the required standard and that Mr Balu should be removed from the PCT's performance list on grounds of unsuitability.

Background chronology.

4. On 26 August 2008 Mrs Walsh consulted Mr Balu at the surgery. He wrote nothing untoward in her medical notes at the time. On 26 September 2008 Mrs Walsh consulted Mr Balu at his surgery. She says that he fondled both her breasts with his hands. She confronted him and roused the surgery and she and her husband returned to the surgery that day in order to make a complaint On 27 September 2008 Mr Balu telephoned the Walshes. He apologised to Mr Walsh, allegedly apologising for his actions. On 7 October 2008 Mr Balu drafted the August note and September note. On 17 October 2008 he wrote to the Medical Protection Society (MPS) a covering letter saying:

"I have given my account of what has happened on the date of consultation 26 09 2008.

I have also enclosed information about the patient's previous visits to see [me] exactly 1 month ago"

5. He enclosed a complaint letter from Mr Walsh and the August and September notes. On 7 October 2008 Mr Balu made an entry in Mrs Walsh's records in respect of the August consultation:

(checked to audio as not found in bundle)

"Administration NOS please note that i have separately kept the information about patient's notes as she has complained. And also I have spoken to MPS about it last Friday as well I feel it is not right to add the [information] about what has [happened] at a later date. But I have recollected all the information and kept it in my folder [separately] for future usage. This is added as [reference] to my personal [information] being stored in a separate area."

6. On 10 October 2008 Dr Cooper, the medical legal adviser at the MPS wrote to Mr Balu, referring to the August note stating:

"At that time we thought that she was behaving provocatively during consultation."

She also provided her direct fax and telephone numbers and other details.

7. On 14 October 2008 Mrs Mohan, Mr Balu's practice manager, returned from leave, found out about the complaint and spoke to Mr Marsden at the PCT, who told them that they needed to have a look at the complaint details.

8. 14 October 2008 Mrs Mohan met with Mr Balu and asked him to give her everything that he had relating to the complaint. She told him she intended to show it to the PCT. He supplied her with documents which included the August and September notes and the letter of 10 October.

9. The summary in Mr Cawson QC's skeleton of 14 October 2008 is that Mrs Mohan spoke to Mr Marsden at the PCT in order to seek advice as to what to do following the complaint. She was informed the PCT would have to look at the complaint details and asked Mrs Mohan to "bring everything over so that they could have a look". Mrs Mohan met with Dr Balu and asked him to give her everything that he had relating to the complaint so that she could show it to the PCT, having informed Dr Balu that she was thinking of "taking the PCT's help". Dr Balu handed the papers that he had relating to the complaint to Mrs Mohan including his fax dated 7 October 2008 to the MPS, the August note and the September note and Dr Hooper's letter of advice of 10 October 2008. Mrs Mohan then visited the PCT's offices and handed over photocopies of the documents in question, having been informed that the PCT would "deal with everything".

10. In Mrs Mohan's statement of 29 November 2009 the following appears:

"7. I then met Dr Balu. I told him that I was thinking of taking the PCT's help. I do not recall him disagreeing. I asked him to give me everything he had relating to the complaint so I could show it to the PCT. I told him about my conversation with Ali Marsden and assured him that I would be meeting with them to seek their guidance. I think that Dr Balu felt reassured"

8. Dr Balu handed me a folder he had. The folder had several documents in it including a letter from his Medicolegal adviser from MPS. In hindsight I feel that Dr Balu should not have handed those documents over to me. I too should not have taken those from him. But then again at that time I was only going to show these to the PCT and seek their guidance. Consequently I did take the papers and showed them to the PCT."

11. I should insert into the chronology at this stage that, because the letter of 10 October 2008 was part and parcel of the documents taken, I have been asked by Mr Cawson QC, which I accept, to treat the letter of 10 October in the same way as the August and September notes. In other words the claim for privilege either stands or falls in respect of the three documents not just two.

12. On 14 October 2008 Mrs Mohan went to the PCT offices to meet with Mr Marsden. Before she handed over any documents she was aware that the PCT's Head of Security and Information Governance, Mr Marsden's manager, were also present. She was surprised by this, she showed them the documents and gave them the photocopies.

13. On 11 November 2008 the PCT prepared a statement by Mrs Mohan. On 9 December 2008 Mr Balu was formally interviewed by investigators appointed by the PCT. He was accompanied by Dr Hooper. Neither of them sought the return of the August or the September notes or sought to restrict their use. Mr Balu was questioned about the August note but possibly not about the September note and it is not known whether Dr Hooper was aware of how the PCT had obtained the notes.

14. On 6 March 2009 Mr Balu was sent a letter from the PCT notifying him that it was minded to remove him from its performance list and offering him an oral hearing. On 20 July 2009 there was a two-day hearing before the PLP appointed by the PCT. Mr Balu was represented by solicitors and counsel. (inaudible) called was Mrs Mohan whose witness statement was included within the hearing by agreement with Mr Balu's then solicitors and contained a (inaudible) two of which were the September and August notes.

15. On 4 August 2009 the PLP sent out its written decision and removed Mr Balu from the performers list. On 28 August 2009 a notice of appeal was served by Mr Balu's then solicitors. On 30 November 2009 the hearing before the FHSAA commenced with Mr Balu represented by fresh solicitors and counsel. It was argued there for the first time that the August and September notes attracted legal advice privilege. The argument was rejected. There was no application to adjourn pending appeal. Cross-examination of Mrs Walsh and Mr Balu continued on the basis that the August note was accurate.

16. On 1 December 2009 Mr Balu was unwell and for that reason the hearing did not continue save that on 2 December 2009 the FHSAA gave its decision on the privilege point. I believe that the appeal hearing has now been stayed because of that natural break pending the outcome of this appeal against the ruling on the privilege issue.

The decision of the FHSAA

17. This is short and I shall read paragraphs 8 to 16 of the decision:

"8. More importantly Dr Balu sought to stress two documents he had created and consequential references to other documents in the bundle on the grounds that they were subject to legal advice privilege that had not been waived"

9. Mr Morris helpfully took us through the background to the creation of these documents. On 3 October 2008 Dr Balu contacted the Medical Protection Society ("MPS"), his defence organisation by telephone to discuss the complaint."

They then take us through the chronology which I have dealt with in more detail. A little later, this appears:

"12. Mr Morris submitted that the documents were made for the purpose of seeking legal advice and were accordingly protected by legal advice privileged [sic]. That privilege had not been waived, in particular because the Notes were provided to the PCT in the course of proceedings but simply disclosed in error. Had he known the use to which the documents would be put by the PCT, he would not have agreed to hand them over. The privilege belongs to Dr Basu [sic] and his advocate's failure to object to their use at the PLP did not have the effect of waiving privilege."

13. Mr Basu on behalf of the PCT did not accept that the claim of privilege was necessarily made out but relied more shortly on the facts that no attempts had been made at the PLP hearing to obtain the return of the September Notes or restrict its use or claim privilege for it. He made the point that the discussion of the August Note at the PLP was initiated by Dr Balu's advocate (Mr Sheldon) as part of his examination in chief and whether his case was that Mrs Walsh fabricated her complaint against him because she was angry that he had refused at the 26 August consultation to discuss her husband's health with her."

14. Mr Basu relied upon Guinness Peat Properties Limited v Fitzroy Robinson Partnership [1987] 1 WLR 1027, CA. and in particular the words of Slade LJ at 1043 E-G that

'Privilege may be lost by inadvertence. This is well illustrated by a decision of this court in Great Atlantic Insurance v Home Insurance Co [1981] 1 WLR 529 In that case the plaintiffs' counsel at the trial read to the judge two paragraphs of a memorandum, being unaware that the memorandum contained other paragraphs in respect of which privilege could have been claimed and without any intention of waiving privilege. Templeman LJ, with whom Dunn LJ agreed, held that privilege had been thereby waived in respect of the whole memorandum, saying at p.540:

'when counsel in the course of a trial introduces into the record a document or part of a document he thereby effectively waives any privilege attaching to that document which could otherwise be asserted by his client.'

And at page 1044E:

'Ordinarily, in my judgment, a party to litigation who sees a particular document referred to in the other side's list, without privilege being claimed, and is subsequently permitted inspection of that document, is fully entitled to assume that any privilege which might otherwise have been claimed for it has been waived. Let there be no doubt about that.'

15. We must bear in mind three matters: there was an interval of 49 weeks between the handing over of the Notes to the PCT and the PLP hearing during which no attempt was made to recover them or assert privilege in respect of them; at the hearing itself the first reference to the August note was a question to Dr Balu by his Counsel in evidence in chief and, although there was a reference at the PLP to the September Note as being disclosed in error, no assertion of privilege or request for its return was made. We accept that this was not a case of inadvertent disclosure within the litigation process but there is no doubt that no effort was made to recover or protect the Notes until last week. The PCT was entitled to assume that the Notes were fully in evidence.

16. In the light of these matters and the clear words of the Court of Appeal, and assuming for the purpose of this decision that both the Notes were originally privileged in the manner contended for, we have no hesitation in concluding that any such privilege was effectively waived at the latest from the conclusion of the proceedings of the PLP. Were it otherwise, a litigant could disclose a document and introduce it into evidence at a hearing and then, if it did not have the hoped-for persuasive effect, seek to suppress it on appeal or re-hearing. This would not be a fair approach, even if it did not fly in the face of the principles set out by the Court of Appeal referred to above."

The relevant regulations

18. The 2004 regulations are the National Health Service (Performers Lists) Regulations 2004. Regulation 10 under the heading "Removal from Performers List" (and I interpose "performer" is a healthcare professional under the definition section; here it is obviously Mr Balu) provides ...

"3. The Primary Care Trust may remove a performer from its performers list where any of the conditions set out in paragraph (4) is satisfied.

4 The conditions mentioned in paragraph (3) are that –

(c) he is unsuitable to be included in that performers list ("an unsuitability case")."

19. Regulation 10(8):

"Where a Primary Care Trust is considering removing a performer from its performers list ... it shall give him –

…

(d) the opportunity to put his case at an oral hearing before it, if he so requests, within the 28 day period mentioned in sub-paragraph (c)."

20. Then at paragraph 10(11):

" If the performer requests an oral hearing, this must take place before the Primary Care Trust reaches its decision, and it shall then, within 7 days of making that decision, notify him of –

a) that decision and the reasons for it ...

and b) any right of appeal under regulation 15."

21. And then regulation 15 under the heading "appeals".

"(1) A performer may appeal (by way of redetermination) to the FHSAA against a decision of a Primary Care Trust mentioned in paragraph (2) by giving notice to the FHSAA."

And then 15(3):

"On appeal the FHSAA may make any decision which the Primary Care Trust could have made."

22. The FHSAA is governed by the Family Health Services Appeal Authority (Procedure) Rules 2001, which I shall selectively cite. In Part II there are variously the procedures of making an appeal to the FHSAA, time periods, notice of appeal, provision for application by the applicant for directions, and response to the appeal. Regulation 31 provides for the allocation to a panel and corrections. Regulation 34 provides for the disclosure of documents and other material and Regulation 35 provides for the summoning of witnesses. Regulation 39 :

"(1) All the hearings by a panel shall be in public except where a practitioner... has asked for the hearing to be in private…"

23. Regulation 41, under the heading "procedure at hearing":

"(1) At the beginning of the hearing the Chairman shall explain to the parties the order of proceedings which the panel proposes to adopt.

(2) Subject to this rule, the panel shall conduct the hearing in such manner as it considers most suitable to the clarification of the issues before it and generally to the just handling of the proceedings.

(3) The parties shall be heard in such order as the panel shall determine and they shall be entitled to give evidence, to call witnesses, to question any witnesses and to address the panel both on the evidence and generally on the subject matter of the appeal or the application, as the case may be."

The first issue: were the August and September notes privileged?

24. It is clear from paragraph of the FHSAA decision that this was assumed for the purposes of their decision, though it has not been conceded by the respondent. On the respondent's skeleton this is an issue before me but there is no respondent's notice. Mr Cawson objected to raising the point at this stage because he said it would affect the way he presented evidence or any investigations that he may make in relation to this performer. Both counsel agreed therefore that I should deal with the case on the same basis as the FHSAA did, namely on the assumption that the documents were privileged at the outset.

Second issue: was privilege waived/did the notes lose their confidential character?

25. The respondent relies on 11 points in support of their affirmative answers to the question posed by the second issue. They form a useful basis for me to consider the arguments. Point (i) reads as follows:

"Mr. Balu made a specific reference in Mrs. Walsh's clinical notes (on 7th October 2008) to information which he had kept separately from her notes;"

26. This is developed in the following way, that the entry which I have already read makes it clear that Mr Balu obtained advice from the MPS and, as a result of this, he decided to keep separate "information about what has happened". It is submitted that this is a reference to the retrospective note of 26 September 2008. That all may be true. However, I do not accept this amounts to a waiving of privilege or loss of confidentiality in either the August or September note. The entry was in my judgment doing no more than signposting that there was another note which was kept separate.

27. Point (ii):

"…he unconditionally provided copies of the August and September Notes to the practice manager (Mrs. Mohan) employed by him (and by his partner, Dr, Shah) for onward transmission to the PCT, on 13th October 2008;"

28. I have already recited the background to this assertion. I accept Mr Cawson's submission that the handing over of the documents was naivety on the part of Mr Balu and Mrs Mohan. In the case of Al-Fayed & Ors v The Commissioner of the Police for the Metropolis and others [2002] EWCA Civ 780 in the Court of Appeal, Mummery LJ summarised the principles at paragraph 16 in this way:

"i. A party giving inspection of documents must decide before doing so what privileged documents he wishes to allow the other party to see and what he does not.

ii. Although the privilege is that of the client and not the solicitor, a party clothes his solicitor with ostensible authority (if not implied or express authority) to waive privilege in respect of relevant documents.

iii. A solicitor considering documents made available by the other party to litigation owes no duty of care to that party and is in general entitled to assume that any privilege which might otherwise have been claimed for such documents has been waived.

iv. In these circumstances, where a party has given inspection of documents, including privileged documents which he has allowed the other party to inspect by mistake, it will in general be too late for him to claim privilege in order to attempt to correct the mistake by obtaining injunctive relief.

v. However, the court has jurisdiction to intervene to prevent the use of documents made available for inspection by mistake where justice requires, as for example in the case of inspection procured by fraud.

vi. In the absence of fraud, all will depend upon the circumstances, but the court may grant an injunction if the documents have been made available for inspection as a result of an obvious mistake.

vii. A mistake is likely to be held to be obvious and an injunction granted where the documents are received by a solicitor and:

a. the solicitor appreciates that a mistake has been made before making some use of the documents; or

b. it would be obvious to a reasonable solicitor in his position that a mistake has been made;

and, in either case, there are no other circumstances which would make it unjust or inequitable to grant relief.

viii Where a solicitor gives detailed consideration to the question whether the documents have been made available for inspection by mistake and honestly concludes that they have not, that fact will be a relevant (and in many cases an important) pointer to the conclusion that it would not be obvious to the reasonable solicitor that a mistake had been made, but is not conclusive; the decision remains a matter for the court.

ix In both the cases identified in vii) a) and b) above there are many circumstances in which it may nevertheless be held to be inequitable or unjust to grant relief, but all will depend upon the particular circumstances.

x Since the court is exercising an equitable jurisdiction, there are no rigid rules."

Of course this was in the context of formal disclosure and inspection in a court's case. I am not prepared to say that a mistake was at that stage obvious or should have been obvious to the PCT. What I do say is that an application had been made in the August and September notes and the 10 October letter, that letter saying in late October 2008 that the PCT, properly advised, would have given them back because privilege had not been made and the documents were still in their possession.

The third issue

"...iii) Mr. Balu never sought the return of the August and September Notes and, indeed, he was specifically asked about the contents of the August Note by an investigator appointed by the PCT (in the presence of Dr. Hooper);"

29. I have already referred to this matter in the chronology (inaudible) the date of 9 December as of that date. By this stage a formal investigation process had started. Dr Hooper is a medical legal adviser and should have known from the file that the August note had been sent to the MPS as part of Mr Balu's response to the allegation made. Had this been the sole point of the case I would found it a difficult one, but I would have decided it in the appellant 's favour because the penny may reasonably have dropped. It was the first part of the more formal process where Dr Hooper was involved but I would not have found a loss of confidentiality merely because of that point at that stage.

Points 4 to 7:

"(iv) the notes were then put into the bundle for a hearing before a Professional List Panel ("PLP") of the PCT, without any objection being taken on Mr. Balu's behalf by his then solicitors, Radcliffes Le Brasseur, or by his solicitors or counsel during the PLP hearing;

(v) during the hearing before the PLP, Mr. Balu's then counsel made specific reference to the August Note, asking Mr. Balu him to confirm that he stood by its contents (which he did);

(vi) during the PLP hearing, Mr. Balu was cross-examined extensively, without any objection being taken, on the contents of both the August and September Notes;

(vii) Mrs. Mohan's first witness statement had exhibited to it the August and September."

I emphasise that the witness statement had been prepared by the PCT not on behalf of Mr Balu.

30. The factual matrix of this point has to be set out in more detail. Firstly the bundle for the hearing before the PLP was prepared by solicitors acting for the PCT in consultation with Mr Balu's then solicitors. Mr Balu's solicitors did not object to the inclusion in the bundle of either the August or the September notes. Those notes, as I have said, were pended to Mrs Mohan's witness statement.

31. In a hearing before the PLP Mr Balu's then counsel said that the September note had been given to Dr Hooper at the MPS and had been disclosed to the PCT in error. Although this point was made, there was no attempt whatsoever to restrict its use or to remove it from the hearing bundle even though other unrelated documents had apparently been removed from the bundle at Mr Balu's advice and request.

32. In respect of the August note Mr Balu was asked certain questions by his counsel as follows:

"[Counsel] Do you know who produced this document?

Dr Balu: I did it.

[Counsel] Are the contents of this document true? Dr Balu: That's correct.

[Counsel] Secondly, do you seek to assert…that Mrs Walsh has made up her complaint against you because she was angry that you didn't give her information about her husband's medical condition?

Dr Balu: I am only saying what has happened, I am not saying it was, I am only saying what has happened on that date."

And then in closing submissions before the PLP counsel for Mr Balu said this about the August note:

(checked to audio as not found in bundle)

"Dr Balu's position is that this consultation took place in the way that he describes. He didn't think much of it at the time. He didn't make a note and he didn't think it was worth upsetting the doctor patient relationship over. He was perfectly prepared to admit in a cross-examination about it yesterday that he may have misunderstood what he had said and done, that he may have got the wrong end of the stick, but he made a note about it after the event when this same patient made a complaint in good faith."

In relation to the September note Mr Balu said this before the PLP:

(checked to audio as not found in bundle)

"As I so told you, this was an initial response, an incomplete response. I have not finished it yet. I was trying to first discuss with Dr Hooper and also wanted to put it in a proper complaint reply format. This letter was as I say not dated, not addressed to anybody. It was made as an initial response. This was given to the PCT by mistake, so it is not initially meant to be used. There should have been a proper complaint reply letter which did not happen, so that is why this letter is with you."

I emphasise that there was no mention before the PLP of legal professional privilege about either of the notes which had gone before it, nor any objection to questioning about it. Indeed in relation to the September note, counsel for Mr Balu said this:

(checked to audio as not found in bundle)

"The second point relates to the draft document you have seen, which was prepared as you heard in the first week of October. He was cross-examined about this document and he said it was a preliminary draft, it was incomplete, it was prepared for the purposes of discussion with Dr Hooper from the MPS. It was sent to the PCT in error and he was not challenged about any of it. It is in any event on the face of the document clearly right, it is not signed, it is not dated, it was plainly not designed to be ^^ which took place and so ^^ I would submit from a frankly inconsistent document ^^ a draft ^^ incomplete document ^^ contain some information point and it would be wrong to place significance or significant weight on what it does or doesn't "

33. Mr Cawson on behalf of Mr Balu makes the following points. 1) Failure to assert privilege at or before the PLP hearing did not and could not have amounted to a waiver 2) It is accepted that use of the August note may have amounted to a waiver (I get this from Mr Hendy's skeleton, Mr Cawson having taken over from Mr Hendy) in that hearing of the privilege in that document. It could not have amounted to a waiver of privilege in the September note. 3) Any waiver before the PLP did not amount to a waiver of privilege before the appeal authority.

34. It is necessary to look at the first two of those points. First, I have already set out the background facts of what happened up to and including the PLP hearing. It seems to me that it cannot be said other than not only was there a waiver of privilege over and loss of confidentiality in the August note referred to at that hearing but also a similar waiver/loss of confidentiality in the September note. The question of waiver has to be treated objectively: Phipson on Evidence 26-11 Looked at in that way the appellants' conduct was consistent with the maintenance of the confidentiality which privilege it was intended to protect.

35. I turn to the argument the waiver before the PLP committee did not amount to a waiver before the FHSAA. The principles here need to be set out in more detail. And I start at Phipson 26-19. Under the heading "To what proceedings does waiver extend?" there is the following:

"Once it is appreciated that waiver of privilege is in in its principal manifestation a litigation-based concept of fairness, it will be apparent that waiver of privilege in one action should not lead to waiver of waiver of privilege in any subsequent action. Where the documents have, as a result of the waiver of privilege in the first action, ceased to be confidential (such as where they have been read out in open court), no possibility will arise of claiming privilege in any subsequent action. But so long as the documents remain confidential between the parties to the subsequent action, there is no reason why a claim for privilege should not be maintained. Similarly, production in criminal proceedings has been held not to give rise to a waiver of privilege for the purpose of subsequent civil proceedings."

And then at paragraphs 26-22 to 26-5 the following extracts appear. First under the heading "Effect of waiver in first proceedings on use by same party in subsequent proceedings":

"Where the parties in subsequent proceedings are the same, the waiver of privilege in the first action will not amount to a waiver of privilege in the second action. If the documents disclosed in the first action remain subject to a collateral undertaking even after use, the court may bar their use in the subsequent action. But otherwise, the question is whether, as between those parties, the receiving party can assert that there is no remaining confidentiality in those documents which enables a claim for privilege to be made against him in the second action."

Phipson then deals with the case of British Coal Corporation and Dennis Rye [1988] 1 WLR 111 and continues with 26-23:

"Subsequent authority on 'limited waiver' indicates that the party who obtains access to the privilege documents in the course of a waiver in the first action will not be able to use them in subsequent actions via the same parties unless the documents come into the public domain so as to make any claim for privilege impossible. In other words, the fact that the prior disclosure of documents in the first action might be said to preclude any continuing confidence in those documents between those parties is not seen as a bar, provided that there is a confidence in the documents which could be maintained against the rest of the world. This is apparent from a decision of the Court of Appeal in Bourns v Raychem. There it was held that prior disclosure of the documents in the course of English taxation of costs proceedings did not preclude privilege in otherwise confidential documents in subsequent proceedings notwithstanding that the parties were the same. The court treated this as a manifestation of the principle that it was possible to waive privilege for a specific purpose and in a specific context without waiving it for any other purpose or in any other context."

And then finally under the heading "Limited waiver" at 26-24:

"An analogous result in relation to a different type of limited waiver was reached by the Privy Council in B v Auckland District Law Society. There in the course of investigating a complaint against a law firm, certain privileged documents had been handed over to counsel appointed by the Law Society. The letter handing over the documents stated that the letters were made available to counsel for the limited purpose of the investigation and 'on the express basis that in doing so privilege is not waived'. The Law Society sought to use the documents in subsequent disciplinary proceedings brought against the law firm. It is argued that once the documents had passed into its hands 'the question is no longer one of privilege but admissibility'. Or, to put it colloquially 'privilege entitles one to refuse to let the cat out of the bag; once it is out of the bag, however, privilege cannot put it back'. What was being argued, therefore, was that once A's privileged documents came into the hands of B, the lack of confidentiality in those documents precluded a claim for privilege as between those persons notwithstanding that a claim for privilege might be set against the rest of the world. The Privy Council rejected this. Lord Millett said that it did not follow that privilege was waived generally because a privileged document has been disclosed for a limited purpose only. The question is not whether privilege has been waived but whether it has been lost."

26-25:

"This somewhat elliptical comment appears to draw a distinction between loss of privilege (where the document comes into the public domain so that no claim for privilege can be made) and waiver of privilege (where even between the same parties whether a claim for privilege may subsequently be made depending on the terms of the waiver)

In the light of this, what happens if, for example, A shares privileged documents with a regulator, an issue on which there is no English authority. The first question is to consider the terms of the arrangement by which A agrees to share the documents with the regulator. Was the use expressly restricted? Were the documents disclosed in confidence? If the documents are not disclosed in confidence, so that the regulator would be free to disclose them to third parties, then a written summons could be issued on the regulator on behest of the third party and the regulator required to disclose them. But if, as is more likely to be the case, the documents are provided in confidence on restricted terms, it is suggested that A should be able to restrain unauthorised use by the regulator. Moreover the documents were provided on the express basis that they should not be used in proceedings, then even though the regulator has access to the documents, it seems to follow from B v Aldon District Law Society that the court may enforce the agreement restricting the use under 'limited waiver' principle."

Mr Cawson submits the PLP hearing was in private, does not constitute proceedings and was there to give Mr Balu a chance to put forward a case as to why he should not be removed from the list. He submits that disclosure by either party in such a limited hearing does not cause a confidential argument to cease to be confidential. In contrast the hearing before the FHSAA is public and a redetermination. It is not bound by, or required to give any consideration to the reasons or material of the PCT decision to remove the doctor from the list, still less to give reasons or material before the PLP. He relies on the fact that the FHSAA rules require the parties to an appeal to disclose the documents on which they rely and makes no provision for disclosure of documents which went before the PLP. He submits that the general rule therefore applies that, unless privileged documents cease to be confidential, privilege can be claimed in subsequent proceedings notwithstanding it had been waived in earlier proceedings between the same parties, citing Bourne v Raychem [1999] 3 All ER 154. He also submits that the PLP was part of a continuum of a process which the PCT started as investigator and then it became prosecutor and finally the decision maker. I do not accept Mr Cawson's submissions for the following reasons.

(1) Between the parties there was no remaining confidentiality in the documents which enabled a valid claim for privilege to be made before the FHSAA. 2) Neither expressly nor impliedly was privilege waived for a specific purpose and in a specific context ie just for the PLP hearing. 3) The main witnesses before the PLP who were asked about the documents and the submissions based on the evidence were the ones reasonably expected to be before the FHSAA on the redetermination (inaudible). 4) Although on redetermination the hearing before the FHSAA is an appeal against the decision following the PLP hearing. Not only does this as a matter of principle make it in my judgment impermissible to say that privilege could be waived just for the PLP hearing and not the appeal, further, as a separate matter of fairness, it would be wholly wrong to test privileged evidence at the PLP hearing and then withdraw it on an appeal under a claim of privilege: see paragraph 16 of the FHSAA's decision. Had the matter come before the court prior to the FHSAA'S decision seeking an injunction against visiting the doctors on appeal, the court would have been exercising an equitable jurisdiction in which there are no rigid rules (al-Fayed principle) (x) and al-Fayed principle (vii):

"…there are many circumstances in which it may nevertheless be held to be inequitable or unjust to grant relief, but all will depend upon the particular circumstances."

In my judgment consideration of those equitable principles would have led to the refusal of any such injunction. The appellant cannot be in a better position by raising the matter before the FHSAA than if it had earlier been raised in proceedings before this court. For those reasons I dismiss the appeal against the FHSAA's ruling. The respondent did raise other points which I shall briefly mention. Point (viii):

"The first assertion of legal advice privilege was made a few days before the appeal hearing before the FHSAA, by fresh counsel instructed for that hearing (by fresh solicitors)

That is factually correct but add nothing to my reasoning.

Point (ix):

"…at the hearing before the FHSAA, Mr. Balu's new advisers disclosed and relied on a letter from Dr. Hooper to Mr. Balu which made reference to his allegation that Mrs. Walsh was "behaving provocatively" in the August consultation. If there had been any privilege in that communication, it was thereby waived by Mr. Balu's advisors, as well as confidentiality in it being lost by its disclosure and use;"

That is a reference to the letter of 10 October 2008 which in fact had been disclosed at the outset along with the other relevant documents and, as I have said before, stands or falls with the ruling I have made on the August/September bundles.

36. Finally points (x) and (xi)

"(x) after the FHSAA had ruled against Mr. Balu in relation to the documents, his advisers did not seek for an adjournment in order to mount an appeal. Instead, his counsel cross-examined on the allegations about her in Mr. Balu's retrospective August Note;

(xi) Mr Balu was then extensively cross-examined on his description of Mrs. Walsh's alleged behaviour at the August consultation. That cross-examination could not be completed (in order to examine omissions from the September Note) due Mr. Balu suffering ill health."

I do not accept these points. I shall merely say it is often a difficult decision whether to ask any tribunal or court to stop a case and appeal a preliminary hearing or to carry on an appeal on a decision if the person ruled against on the preliminary point loses it.

Article 8

37. There is an Article 8 point raised in the course of the skeleton based on paragraph 26-69 of Phipson but it does not arise on my decision since the waiver at the PLP hearing could not be said to be other than unequivocal

38. For those reasons the appeal is dismissed.

MR BASU : My Lord, in those circumstances I would ask for my costs. My understanding is that a costs schedule has been served on my learned friend and sent to the court.

HHJ STEWART QC : I have not seen one

MR CAWSON : My Lord I have not seen one, and I can take instructions as to whether one has been received and the last time I heard we hadn't received one

HHJ STEWART : Do you want to liaise with your solicitor? There's no argument with the principle, though?

MR CAWSON: My Lord no indeed costs must follow the event, clearly.

(consults with solicitor)

MR BASU: My Lord I am so sorry, my understanding is it looks as though it was DXed on the 7^th, which would have been Wednesday to my learned friend.

HHJ STEWART QC: If it was sent DX on Wednesday it would have been received today not yesterday.

MR BASU: Right yes, yes. My Lord, in the circumstances, also given the hour it would be better simply to have the costs to be assessed if not agreed

HHJ STEWART QC : (inaudible) summary assessment. I have two options. (inaudible). You can either sort it out or in a few minutes I will have a go at assessing it.

MR BASU: Yes, of course.

HHJ STEWART QC : If (inaudible) prejudice I will put that back. Unless there are other reasons, after applying summary assessment so in a couple of weeks time (inaudible)

MR BASU : My Lord, yes

HHJ STEWART QC : A detailed assessment by virtue (inaudible), whichever way that cuts. Do you want to show Mr Cawson the schedule? Because it may be it's uncontroversial.

MR BASU : Yes.

MR CAWSON: My Lord, I would suspect I would have to take instructions

HHJ STEWART QC: Of course. Does it look on its face to be seriously problematic, or only mildly problematic, subject to instructions?

MR CAWSON: I think I will have to take instructions. I haven't seen our costs schedule either. I will just have to take instructions, if I may, my Lord.

HHJ STEWART QC : Do you need me to rise?

MR CAWSON : If your Lordship could very briefly, perhaps five or ten minutes.

HHJ STEWART QC : I don't know if you need any of these documents for the purposes of costs

MR CAWSON : My Lord, no. My Lord I should just say that I have been asked to apply for permission to appeal on the nub issues Your Lordship probably won't need the papers but I am instructed to make that application.

HHJ STEWART QC : OK, well whilst you are looking at that I will fill in a form so is there anything else you want me to say in support of (inaudible)

MR CAWSON : My Lord I don't think so. I would simply say it is a point of law, I would submit a point as to the relationship between the two procedures which (inaudible)

HHJ STEWART QC : I will fill in a form refusing (inaudible).

(adjournment)

MR CAWSON: As I anticipated, we have managed to agree costs, and it's agreed they should be summarily assessed in the sum of £9,000.

HHJ STEWART QC Ok, so, appeal dismissed. Appellant to pay the respondent's costs, assessed at £9,000. 3) Permission to appeal

MR CAWSON: Just to add to that. The default time for payment would be 14 days. We have agreed 28 days.

HHJ STEWART: Right, and I have filled in the form refusing.