
Post Office scandal: Privilege played deeply problematic role
The Post Office inquiry shows that legal professional privilege (LPP) presents “significant problems of principle and practice” and needs urgent reform, leading academics have argued.
There was a case for “a thoroughgoing, first principles review” of LPP, and its operation “in organisational contexts” in particular – with their report highlighting concerns about misuse by corporations.
Professors Andrew Higgins from Oxford University, and Richard Moorhead from Exeter University also recommended a series of changes that would improve the operation of LPP whether or not such a full review took place.
The report is the latest produced by the Post Office Project overseen by Professor Moorhead, who has led the way in analysing the lessons for lawyers’ ethics and corporate governance. Professor Higgins is general editor of Civil Justice Quarterly and author of Legal Professional Privilege for Corporations.
It listed a host of ways in which LPP has come up in the inquiry, such using it to minimise disclosure of adverse information both in litigation and via freedom of information requests – described as “a central element of the advice given by lawyers to the Post Office” – non-legal staff routinely labelling documents as privileged, routing documents through legal advisers just so privilege could be asserted, and documenting adverse information in ways designed to make those documents look like they were drawn up as preparation for litigation.
The report said: “Whatever conclusion one draws, even if one leans towards a less sceptical position on the purpose and motives of those involved, legal professional privilege played a deeply problematic role.
“What is needed is a thorough review of legal privilege considering it from first principles and based on how privilege actually impacts on behaviour, especially in corporate contexts.”
The academics acknowledged the value of LPP in allowing clients to talk freely to a lawyer, but highlighted “particular concern” about the potential for corporations and public bodies to make “very broad, and sometimes unmeritorious, privilege claims”.
“In the case of governments, there is also concern that privilege claims are used to avoid disclosure of sensitive information of significant and legitimate public interest, and which the public would otherwise be entitled to access under freedom of information laws.”
The report recommended qualified privilege for corporations, giving judges discretion to lift it in appropriate cases “to ensure that relevant corporate records are not lost to the law enforcement process or legal proceedings”.
It explained: “Qualifying the privilege is one means of avoiding the injustices that may occur by upholding privilege in every circumstance no matter how prejudicial the effects of non-disclosure may be to the administration of justice and the rights of others, or how minor the impact of disclosure may be to the privilege holder.
This would help judges to better perform a balancing exercise when a party seeking documents can show they have a genuine need for the materials and that their substantial equivalent cannot be obtained by other means without undue hardship.
Judges should also be more inclined to consider challenges to privilege where they currently arise, with the academics arguing that they were currently too inclined to accept at face value the assertions of organisations like the Post Office that material was privileged when it was not.
Among the other recommendations were to maintain “a tightly defined notion of who the client is for the purposes of privilege”, and reverse the current “cautious” approach of courts to reviewing privilege claims including, in particular, greater use of inspection in camera by the courts or similar approaches for suitable cases.
The report called too for stronger ethical standards and governance rules to prevent LPP abuse: “One of the features of the evidence before the Post Office inquiry has been a passing of the buck when it comes to responsibility for disclosure decisions.”
It also referred to suggestions made by Professor Moorhead in his Hamlyn Lectures late last year, including making privilege dependent on advice or litigation help being given independently, and having a disclosure officer in litigation, as well as documented responsibility and sign-off around privilege, disclosure and redaction.
“…having a disclosure officer in litigation,”, by which is meant, I suppose, *civil* litigation ? The CPIA provides for such, in *criminal” proceedings; but see how *those* provisions – and many others – were exuberantly flouted -not just ignored – by the PO’s solicitors, in the Horizon scandal.