Documents: Sent direct to court
The president of the Family Division is to be asked what the court should do in the highly unusual case of a ‘whistleblower’ from the solicitors of one party to a divorce sending it legally privileged information.
Mr Justice Holman said it was “not difficult to see that if some employee of a firm of a solicitors can disclose what is otherwise prima facie privileged material, whether to the court or to the other side, the whole edifice of legal professional privilege might rapidly crumble”.
But he continued: “On the other hand, fraud is fraud, and my current understanding is that legal professional privilege cannot, in the end, withstand the unravelling of fraud or similar malpractices if (I stress if) they have taken place.”
In Bruzas v Saxton [2018] EWHC 1619 (Fam) [1], the couple had agreed a clean break back in 2014, with a consent order making provision for certain capital redistribution and for the husband to make various payments to the wife. There was no provision for continuing periodical payments.
Holman J recounted how, “in due course, the wife became very dissatisfied with some of the terms of that order and applied for it to be set aside”. This was dismissed by Mrs Justice Parker last December.
“A most unusual turn of events then occurred. During January 2018, Parker J received through the post a quantity of documents or ‘material’ from a person who was employed during 2017 as a paralegal in the firm of solicitors who had been acting, both in 2013/2014 and still in 2017, on behalf of the husband…
“I understand… that they contain, or include, some account of things allegedly said between the husband, as client, and his solicitor (by whose firm the informant was employed) and junior counsel during the course of 2017.
“It provisionally appears, as I understand it, that the paralegal was acting in some way as what is colloquially known as a ‘whistle blower’.”
Parker J held a hearing in February 2018 to consider what to do with the material, which by then she had supplied to both parties.
At this, she acceded to an application to recuse herself on the grounds that she had seen the material.
The case was passed to Holman J, but for various reasons, he said this week that he was not able to decide what to do with the case.
Instead, he proposed listing the case before the president of the Family Division to rule on whether the material should be admitted into evidence.
This was provided that the wife formally issued an application she had filed in draft to overturn the December 2017 decision on the grounds of “perjury and perverting the course of justice committed by respondent and his legal team”.
Homan J said: “It provisionally seems to me that it raises new and grave issues in relation to one of the most cardinal areas of our law, namely legal professional privilege.
“For that reason, it seems to me, since, in any event, I cannot rule upon these issues today but must adjourn for the reasons which I have already given, that I should now direct that this difficult and interesting case is now considered at the highest possible level, namely that of the president of the Family Division.”