Client waived privilege by contesting what her instructions were

Divorce: Wife invited husband into consultation room

A client arguing that her former solicitors did not follow her instructions in drawing up a divorce petition waived privilege in doing so, a High Court judge has ruled.

Mr Justice Cohen said the wife had “invited” her husband into the notional meeting room where she met with her solicitors.

In AG v VD [2020] EWHC 1847 (Fam), the wife is seeking financial remedy orders, and an issue in dispute is whether the marriage came to an end in 2014, as the husband contends, or 2017, as per the wife.

However, her divorce petition, which was filed in March 2017, said they had been separated for two years and the wife was now arguing that it did not reflect her instructions.

The wife, who was born in Russia, told the court that, in early 2017, she instructed Legal Case Management Ltd – which she said she did not realise at the time was a “para-law firm” and not a firm of solicitors – to issue divorce proceedings. It retained London firm Sterling Lawyers to issue the petition.

She said she signed the petition, “which was in English and just put in front of me”, but at no time was it translated into Russian so she could check it – she said that though she understood spoken English, she was not a confident speaker or reader. Her husband disputes this.

The husband sought an order that the wife produce the files of Legal Case Management and Sterling Lawyers.

He submitted that the wife had waived privilege in her statements to the court, and when answering a questionnaire about when she first instructed lawyers for the divorce.

Cohen J said the question was whether the wife was simply making a passing reference to an erroneous document or was “opening the door of the notional consulting room in which she and her advisors were meeting and explaining and relying upon what would otherwise be a privileged process”.

He found that she had “invited H into the consultation room”.

Expressly challenging what her lawyers had quoted her instructions to be was “a radical change of direction in her case which goes to its substance”.

Cohen J said: “It would not be fair for H to be put in the position where he could not challenge this statement by reference to what are likely to be contemporaneous notes, emails or other communications.”

The fact that the wife did not specify a particular conversation or refer to advice she was given in her statements was “neither here nor there”, the judge continued.

“What is relevant is that she has opened up the question of what she told her advisors. She puts it squarely in issue and is relying upon what she says she told her agents.

“It makes no difference in principle whether the communications in question are from solicitors to client, whether in the nature of advice or otherwise, or from client to solicitors by way of instruction.”

The waiver was to be found in her witness statements rather than the questionnaire, he added.

However, the judge said the husband’s request to see the whole of the files went too far and should be limited to material about her instructions on when the parties separated and when marital relations ceased, including the language they were given in, and about when the draft petition was sent to her or any communication with her about its contents.

Cohen J said a QC should be selected to sift the material and remove references to anything else.

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