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Family Law

The leading authority on all aspects of family law

22 AUG 2006

Legal Professional Privilege and Three Rivers (No 6): Part 1 Legal Advice Privilege

Charles Prest, Barrister, No 6 Chambers. In the mid-1990s, developments in the field of legal professional privilege were led by R v Derby Magistrates' Court ex parte B [1996] 1 FLR 513 and Re L (Police Investigation: Privilege) [1996] 1 FLR 731. In R v Derby Magistrates' Court a unanimous House of Lords held that the appellant could not be made to disclose in criminal committal proceedings an earlier and different account he had given to his solicitors about the death of a girl unless he chose to waive his privilege (ie, legal advice privilege), while in Re L, a 3:2 majority in the House of Lords held that because proceedings under Part IV of the Children Act 1989 are non-adversarial, an expert's report obtained in such proceedings did not attract privilege (ie, litigation privilege) and an order could, therefore, lawfully be made for the disclosure of that report to the police.

However, the leading decisions in this field are now those arising from the litigation surrounding the collapse of the Bank of Credit and Commerce International, including the decisions of the Court of Appeal in Three Rivers District Council and Others v Governor and Company of the Bank of England (No 5) [2003] EWCA Civ 474, [2003] QB 1556 and, in particular, the decision of the House of Lords in Three Rivers District Council and Others v Governor and Company of the Bank of England (No 6) [2004] UKHL 48, [2005] 1 AC 610. The purpose of the series of three articles is to try to chart a way through what has been and may continue to be a difficult area of law and practice, identifying for family law specialists key elements of the reasoning in Three Rivers (No 6) and its application in children law cases. This article, the first in the series, introduces the subject as a whole and Three Rivers (No 6) itself, and then considers where this has left the law on legal advice privilege. See September [2006] Fam Law 767 for the first article in the series.

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