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AG v VD: Waiving legal professional privilege in the family court

Cohen J referred in his judgment to the importance of adhering to the “cherry-picking principle” as set out in the case of Brennan & Ors v Sunderland City Council & Ors [2009] OCR 479. To allow an individual item of evidence to be picked out risks injustice if that evidence is not seen in context.

Cohen J held that a jointly instructed QC would review W’s previous file and would determine which documents needed to be disclosed. This would help prevent either party from obtaining an unfair advantage. W was ordered to pay H’s costs on the standard basis.

This shows the importance of careful drafting in order to avoid the consequences of an unintended waiver of legal professional privilege.

The concept of privilege is a central tenet to the legal process as it allows you to communicate freely with your legal advisor. It gives you the right to withhold certain information from the court or a third party.

In the recent case of AG v VD [2020] EWHC 1847 (Fam), Cohen J was asked to determine whether the Wife (W) had waived privileged and, if so, what the consequences were.

The question arose after the Husband (H) applied for W to produce the file of her previous solicitors, which in normal circumstances would be protected by legal professional privilege. The difficulty W faced is that she claimed in an earlier divorce petition (filed but not served) that the parties had been separated for two years. The divorce ended up being processed in Russia with W choosing to bring a financial claim in England after the event. In support of her claim for financial provision, W stated that the marriage broke down in 2017, which contradicted her earlier assertion that the marriage had ended two years earlier.

H argued that W had waived privilege on a number of occasions when she referred to the advice given to her by her previous solicitors when they were drafting the divorce petition. W argued that, because she hadn’t specified particular instances of advice, she had not waived privilege. Cohen J found that by referring to her “frankly incompetent” advisors, W had effectively “introduced H into the consultation room” and that, accordingly, it would be unfair if H was not allowed to challenge the evidence relied upon. The advice that was given to W by her first advisors was squarely in issue, as W was seeking to rely on it as part of her application for financial relief.

Posted By Nina Lake

3 September 2020

Nina Lake
Partner, Family Law