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Cite as: [2009] UKUT 204 (AAC), [2010] AACR 12

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LM v London Borough of Lewisham [2009] UKUT 204 (AAC) (09 October 2009)
Tribunal procedure and practice (including UT)
tribunal jurisdiction

S/1963/2009

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

Decision

This appeal succeeds. In accordance with the provisions of section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007 we set aside the decision consisting of case management directions of the First-tier Tribunal (Health, Education and Social Care Chamber), made on 9th July 2009 and varied on 26th July 2009, under reference 09/00957. We remake the Decision by substituting for the final sentences of paragraphs 4 and 5 of the case management directions the wording set out in paragraph 2 of our decision. This is without prejudice to the power of the First-tier Tribunal to otherwise vary the directions. Subject to any further direction by the First-tier Tribunal, any amended report or instructions required to be filed and served as a result of this decision shall be filed and served no later than 4 pm on 14th October 2009.

(a) In paragraph 4:

Any such report must state the substance of any material instructions (other than instructions protected by legal advice privilege) supplied, whether written or oral, on the basis of which the report was written and include details of all records and reports seen by the specialist. No specific document of instruction need be disclosed but a party may append such a document to the report instead of including the substance of the instructions contained in the document in the report itself.

(b) In paragraph 5:

If the further evidence sent in by either party includes specialist reports then any such report must state the substance of any material instructions (other than instructions protected by legal advice privilege) supplied, whether written or oral, on the basis of which the report was written and include details of all records and reports seen by the specialist. No specific document of instruction need be disclosed but a party may append such a document to the report instead of including the substance of the instructions contained in the document in the report itself.

Hearing

We held an oral hearing of this appeal, together with that of the appeal in S/2246/2009 (which is the subject of a separate decision) at the Royal Courts of Justice on 29th September 2009. The appellants in both cases were represented by Aileen McColgan of counsel instructed by Levenes Solicitors. The respondent local authority in each case was represented by Fiona Butler of counsel, instructed by Browne Jacobson LLP. We are grateful to them for their assistance.

Background and Procedure

The appellant is the mother of a girl born on 2nd July 1998 who is a child with special educational needs and in respect of whom the respondent local education authority maintains a statement of special educational needs. On 13th February 2009 the respondent issued an amended statement naming a particular secondary school for her to attend from September 2009. The appellant appealed to the Health, Education and Social Care Chamber of the First-tier Tribunal against the contents of the amended statement and the naming of the particular school. The appeal was listed for hearing on 16th October 2009.

When a case is pending before the First-tier Tribunal a Tribunal Judge has power to issue case management directions. In this particular case a judge issued such directions on 9th July 2009. Paragraph 4 of those directions, in so far as relevant, was as follows:

"4. [The appellant] is to provide to the Tribunal and to the [respondent] a copy of any specialist report obtained … by 15th July. If any report is not in final format, then it will be acceptable to provide a draft report and subsequently provide the final copy. Any such report must have attached to it a copy of the letter of instruction and include details of all records/reports seen by the specialist".

Paragraph 5 dealt with any further information, which was to be disclosed by 15th September, and added that:

"5. … If the further evidence sent in by either party includes specialist reports then it must have attached to it a copy of the letter of instruction and include details of all records/reports seen by the specialist".

On 13th July 2009 the appellant's solicitors applied to the First-tier Tribunal for an extension of the time specified in paragraph 4 (for various reasons that were given) and also for directions that both the instructions referred to in paragraphs 4 and 5 and the draft of any report referred to in paragraph 4 were privileged from disclosure. On 26th July 2009 a different Judge of the First-tier Tribunal extended to 28th August 2009 the time specified in paragraph 4 but refused to amend the directions of 9th July 2009 any further. On the following day the appellant's solicitors applied for permission to appeal to the Upper Tribunal against the disputed parts of paragraphs 4 and 5 and on 5th August 2009 the Judge refused to review the decision of 26th July 2009 and also refused permission to appeal against it to the Upper Tribunal.

The appellant now appeals by permission of Upper Tribunal Judge Levenson, given on 13th August 2009, limited to questions relating to the jurisdiction of the Upper Tribunal to consider interlocutory appeals, questions relating to legal professional privilege, and questions relating to the power of the First-tier Tribunal to give the case management directions that were given. He also directed that the effect of the disputed words be suspended until further Direction or the issue of the Upper Tribunal's decision on the appeal. That direction lapses on the issue of this decision. On 10th September 2009, on behalf of the President of the Administrative Appeals Chamber of the Upper Tribunal, Upper Tribunal Judge Rowland directed that this appeal be heard together with that in S/2246/2009 and that it be heard before a three-judge panel.

The Jurisdiction of the Upper Tribunal – The Legal Provisions

So far as is relevant to this appeal, section 11 of the Tribunals, Courts and Enforcement Act 2007 provides as follows:

11 (1) For the purposes of subsection (2) the reference to a right of appeal is to a right to appeal to the to the Upper Tribunal on any point of law arising from a decision made by the First-tier Tribunal other than an excluded decision.

(2) Any party to a case has a right of appeal, subject to subsection (8).

…

(5) For the purposes of subsection (1), an "excluded decision" is –

(a) …

…

A decision of the First-tier Tribunal under section 9 –

(i) to review, or not to review, an earlier decision of the tribunal

…..

Section 11(8) of the Act (referred to in section 11(2)) deals with treating a person as a party to the case. Section 9 (referred to in section 11(5)(d)) and rules made under it give the First-tier Tribunal power to review a decision in a wide range of circumstances but it is not necessary to go into any detail here.

Although the meaning of "excluded decision" is provided, the word "decision" when standing alone is not defined.

The respondent also referred to rule 6(5) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008, which provides as follows:

6(5) If a party … wishes to challenge a direction which the Tribunal has given, they may do so by applying for another direction which amends, suspends or sets aside the first direction.

The Jurisdiction of the Upper Tribunal – The Argument

The respondent argued that, in light of the purposes for which the Upper Tribunal was established, the appropriate remedy for a party dissatisfied with a direction of the First-tier Tribunal is to make an application under rule 6(5) rather than appeal to the Upper Tribunal, and that given that the Tribunal Judge had, on 26th July, refused to review the decision in which the directions had been given, this was in reality an attempt to appeal against the refusal to review, which is an excluded decision under section 11(5)(d) of the 2007 Act. However, before us Ms Butler conceded that there would in any event be a potential remedy by way of judicial review, and that any application for judicial review in such a case would be heard by this Chamber of the Upper Tribunal.

In our opinion this is in reality an appeal against the decision of 26th July 2009 confirming (save in one respect) the decision of 9th July 2009, to make the case management directions that were made. This is not an excluded decision and therefore there is a right of appeal to the Upper Tribunal under section 11 of the 2007 Act. The purpose of the exclusion in section 11(5)(d) is to prevent an appeal being brought against a review decision where it should be brought against the decision which it has been sought to have reviewed.

Our approach is consistent with that of a previous three-judge panel of this Chamber in Dorset Healthcare NHS Foundation Trust v MH [2009] UKUT 4 (AAC), which was also considering an appeal from the Health, Education and Social Care Chamber of the First-tier Tribunal and which stated at paragraph 8:

" … we accept that there is in any event no ground for construing section 11 in such a way that an interlocutory decision to direct disclosure is not within its scope. This is important, because an adequate remedy may not be available through an appeal against a final decision, by which time irreparable damage may have been done through disclosure".

Legal Professional Privilege

Subject to statutory intervention and certain other exceptions that have been developed, the traditional rule is that confidential communications between a client and a legal adviser need not be given in evidence by the client and, without the client's consent, may not be given in evidence by the legal adviser in a judicial proceeding if the communication is made either:

(a) to enable the client to obtain, or the adviser to give, legal advice, or with reference to litigation that is actually taking place or was in the contemplation of the client.

The protection offered in the circumstances of (a) is sometimes referred to as "legal advice privilege"; the protection offered in the circumstances of (b) is sometimes referred to as "litigation privilege" (In Re L (A Minor) (Police Investigation: Privilege) [1997] AC 16). We deal further below with that in (b). That in (a) also extends to communications between the legal adviser and third parties which come into existence for the purpose of giving legal advice.

Legal advice privilege attaches to all communications between legal advisers and has been described as absolute (In Re L, above). As Toulson J said in General Mediterranean Holdings SA v Patel and another [1999] 3 All ER 673 at 688 ("the Patel case"):

"In summary the common law (1) recognises the right to legal confidentiality which arises as between a person and his legal adviser (save where the client is trying to use the relationship for an unlawful purpose) as a matter of substantive law, and (2) regards it as a right of great constitutional importance, because it is seen as a necessary bulwark of the citizen's right of access to justice, whether as a claimant or as a defendant. Legal professional privilege is an attribute or manifestation of that right. It is also … much more than an ordinary rule of evidence, being considered a fundamental condition on which the administration of justice rests".

Toulson J also referred to the speech by Lord Hoffman in R v Secretary of State for the Home Department ex p Simms [1993] 3 All ER 400 at 412:

"Fundamental rights cannot be overridden by general or ambiguous words. … In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual".

Toulson J added (at 692) that the presumption against Parliament intending to encroach on fundamental rights by general words applies still more strongly where the general words are merely delegating a power to legislate.

The First-tier Tribunal and Rules of Evidence – the Provisions

The First-tier Tribunal and the Upper Tribunal were both created by the Tribunals, Courts and Enforcement Act 2007 (although they do of course replace predecessor bodies). Section 22 and Schedule 5 deal with procedural rules for these tribunals. So far as is relevant paragraph 10 of Schedule 5 provides as follows:

10(1) Rules may make provision about evidence (including evidence on oath and the administration of oaths).

(2) Rules may modify any rules of evidence provided for elsewhere, so far as they would apply to proceedings before the First-tier Tribunal or Upper Tribunal.

Rule 2 of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 provides that the overriding objective of the Rules is to enable the tribunal to deal with cases "fairly and justly". Rule 2(3) places a duty on the tribunal to seek to give effect to the overriding objective when exercising any power under the rules or interpreting any rule or practice direction. Rule 2(4) places a duty on the parties to help the tribunal to further the overriding objective and to co-operate with the tribunal generally.

Rule 5 of those rules deals with case management powers and so far as is relevant provides as follows:

5(1) Subject to the provisions of the 2007 Act and any other enactment, the Tribunal may regulate its own procedure.

(2) The Tribunal may give a direction in relation to the conduct or disposal of proceedings at any time, including a direction amending, suspending or setting aside an earlier direction.

(3) In particular, and without restricting the general powers in paragraphs (1) and (2), the Tribunal may –

…

(d) permit or require a party or another person to provide documents, information or submissions to the Tribunal or a party;

Rules 15 and 16 deal with evidence and submissions and so far as is relevant provide as follows:

15(1) Without restriction on the general powers in rule 5(1) and 5(2) (case management powers) the Tribunal may give directions as to -

(a) issues on which it requires evidence or submissions;

(b) the nature of the evidence or submissions it requires;

(c) whether the parties are permitted or required to provide expert evidence, and if so whether the parties must jointly appoint a single expert to provide such evidence;

...

(2) The Tribunal may –

(a) admit evidence whether or not –

(i) the evidence would be admissible in a civil trial in England and Wales; or

the evidence was available to a previous decision maker; or

(b) exclude evidence that would otherwise be admissible where –

(i) the evidence was not provided within the time allowed by a direction or a practice direction;

the evidence was otherwise provided in a manner that did not comply with a direction or a practice direction; or

it would otherwise be unfair to admit the evidence.

16(3) No person may be compelled to give any evidence or produce any document that the person could not be compelled to give or produce on a trial of an action in a court of law.

Legal Advice Privilege in the First-Tier Tribunal

In light of the above analysis it is clear that the very specific rule in 16(3), the making of which is authorised by the 2007 Act, prevails over the very wide and general powers otherwise given to the tribunal by rules 5, 15 and 16. The overriding objective in rule 2 relates to the manner in which the rules are to be interpreted and applied. Procedural rules cannot deprive a party of substantive rights given by the general law (see the Patel case above). Outside the specific exceptions that have developed there can be no doubt that legal advice privilege does apply to proceedings in the First-tier Tribunal and that tribunal has no power to give a direction, compliance with which would infringe the privilege.

Litigation Privilege

At common law, although a report or proof of evidence from a potential expert witness is not disclosable in itself, a party can be compelled to produce such a report in advance of the hearing as a condition of relying on it and the mere service of a report constitutes a waiver of privilege in that document, irrespective of whether it is subsequently put in evidence at trial. Once the expert becomes an actual, rather than a potential, witness, the privilege from disclosure does not apply to the documents on which the opinion of the expert witness is based, whether or not the expert had considered them to be relevant to the conclusion. Otherwise it would be unfair because the opinion of the expert could not be properly tested in court ((R v King [1983] 1 All ER 929); Clough v Tameside & Glossop Health Authority [1998] 1 WLR 1478). This much seems to be agreed between the parties, and it is certainly our understanding of the law.

However, on behalf of the appellant, Ms McColgan argued that the content of instructions to the expert that are not relied on in the report remain privileged and any waiver of privilege cannot occur in advance of the reliance on the expert's report, because it is the very reliance which results in any waiver of the privilege. Even the Civil Procedure Rules (which do not apply to proceedings in the First-tier Tribunal) do not require the disclosure of instructions to experts as a matter of course and that at common law the instructions would have been privileged prior to waiver of the privilege (CPR r. 35.10; Lucas v Barking, Havering and Redbridge Hospitals NHS Trust [2003] EWCA Civ 1102; [2003] 4 All ER 720). Ms McColgan also made a number of criticisms of the reasoning and analysis of the First-tier Tribunal Judge but it is not necessary for us to examine these in detail.

For the respondents, Ms Butler argued that Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 conferred on the First-tier Tribunal power to make the directions that were made and that they were neither unfair nor unjust. On their proper construction they did not require the letter of instruction to be disclosed unless and until the appellant chose to rely on the report and, at any rate so far as litigation privilege was concerned, were unexceptional.

We also considered the decision of the House of Lords in In Re L (A Minor) (Police Investigation: Privilege) [1997] AC 16. There were care proceedings involving a 2 year old child. The child's mother obtained an expert report for the purposes of the care proceedings and filed it with the court in compliance with an order of the district judge, even though it was adverse to her interests. The police authority sought access to this report for the purposes of a criminal investigation but the mother objected on the ground, among others, that the order requiring her to file the report breached her right to litigation privilege. The House of Lords decided (by a majority of 3 to 2) that litigation privilege was essentially a creature of adversarial proceedings and that it was open to it to consider to what extent it applied in non-adversarial proceedings such as care proceedings. It decided that there was no litigation privilege in a report that could be produced only with the leave of the court and that the filing of the report in the care proceedings without challenging the report on the grounds of privilege amounted to a waiver of any privilege in it. Part of the reasoning was that the relevant care proceedings were investigative and non-adversarial in nature and placed the welfare of the child as the paramount consideration.

Partly on the basis of this decision Ms Butler also suggested that proceedings before the First-tier Tribunal, being principally inquisitorial rather than adversarial, are not litigation and therefore do not attract common law litigation privilege in the first place. However, In re L does not decide that there is never any litigation privilege in care proceedings, their Lordships being careful to confine themselves to cases where the filing of a report requires the leave of the court in order that documents already filed in the proceedings (and therefore available to all parties) may be disclosed to the expert or that the child may be examined. It is true that it was suggested that subordinating the welfare of the child to the interests of the mother in preserving confidentiality might, in any event, appear to frustrate the primary object of the Children Act 1989 but that consideration is not relevant in this case because the statutory requirement under the Children Act 1989 to give the welfare of the child paramount consideration does not apply in proceedings in respect of statements of special educational needs, which are brought under different legislation (see White v Aldridge [1998] EWHC Admin 815 at [30] – [31]; [1999] ELR 58, 67C, unaffected on this point by the subsequent appeal).

Conclusions

Litigation privilege was available for the old prerogative order proceedings and applies to modern judicial review proceedings, although many of the features of a fully contested adversarial contest would be absent in such cases. We see no basis for not regarding proceedings before the First-tier Tribunal as litigation for the purposes of legal professional privilege in both of its aspects.

We do, however, accept Ms Butler's submission that, as the tribunal in this case did not require either party to disclose a report unless it proposed to rely upon it, there would at the time of disclosure necessarily be a waiver of privilege in both the report and the instructions upon which it was based except insofar as the instructions contained material protected by legal advice privilege.

In our judgment the only error in the tribunal's directions was that it did not expressly exclude from the ambit of the instructions that had to be disclosed any instructions to which legal advice privilege attached. We asked the parties whether they would be content with a variation of the directions so that any part of the instructions to which legal advice privilege attached could be withheld or redacted but Ms McColgan preferred the approach taken in the Civil Procedure Rules ("CPR").

CPR r 35.10 (3) and (4) provides

35.10 (3) The expert's report must state the substance of all material instructions, whether written or oral, on the basis of which the report was written.

(4) The instructions referred to in paragraph (3) shall not be privileged against disclosure but the court will not, in relation to those instructions – (a) order disclosure of any specific document or (b) permit any questioning in court, other than by the party who instructed the expert, unless it is satisfied that there are reasonable grounds to consider the statement of instructions given under paragraph (3) to be inaccurate or incomplete.

Ms McColgan pointed out that the advantage of the approach taken in paragraph (3) is that it catches oral instructions, which she suggested were used more frequently by local education authorities than by parents, as well as written instructions.

The terms of our decision reflect our acceptance of Ms McColgan's preference in this case. However, we do not intent to bind the First-tier Tribunal to use the same formulation in future cases. What is important is that any direction should operate in an even-handed manner and should not require disclosure of any material in breach of legal advice privilege. Beyond that, the First-tier Tribunal and those who appear before it are entitled to develop other forms of words that secure the overriding objective imposed on the First-tier Tribunal to deal with cases fairly and justly.

Ms McColgan has also complained at the reference in the case management directions to draft expert reports. However, we do not read the direction as requiring disclosure of a draft report (which might well breach litigation privilege) but as permitting the appellant to submit such if she wished to and if the final report was not ready.

For the above reasons this appeal succeeds to the extent indicated.

Mark Rowland

Judge of the Upper Tribunal

H. Levenson

Judge of the Upper Tribunal

C. Ward

Judge of the Upper Tribunal

9th October 2009