Old cases often the best

This thought has been prompted by two quite flagrant examples over the course of 2018.

The first is operation of the legal aid statutory charge (‘the charge’) in Human Rights Act 1998 (HRA 1998) damages claims; and, as it seems from the law reports, of the failure of the lawyers, judges and LAA staff involved to take any notice of Hanlon v The Law Society [1981] AC 124, [1980] 2 WLR 756 (Hanlon).

The second is over allegations of disclosure by LAA staff of information in their files to government staff and ministers, right up to, it is said, the then Lord Chancellor, Mr Grayling. (Mr Grayling, a modern politician, denies any knowledge.) The disclosure allegations derive from a press report from Buzzfeed News (on 5 October 2018) that LAA had passed on confidential information to the Ministry of Justice such that legal aid was denied to ultimately successful applicants for judicial review against other government departments.

Hanlon v The Law Society and legal aid statutory charge

Mixed message legal aid case law appeared at the turn of 2016-17. Were damages under the HRA 1998 subject to the charge under s 25 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPOA): see, eg P v A Local Authority [2016] EWHC 2779 (Fam); [2016] 4 WLR 180, Keehan J; In re CZ (Human Rights Claim: Costs) [2017] EWFC 11; [2017] 1 WLR 2467, Cobb J; and In re H (A Minor) v Northamptonshire County Council [2017] EWHC 282 (Fam), Keehan J.

In the last of these the Lord Chancellor considered what should have been obvious all along, had the lawyers and judges considered Hanlon (which seems not to have been cited in any of the cases): namely, that the charge could not apply. HRA damages claims were – or should have been – “separate proceedings”. The charge question was revived in Northamptonshire CC v Lord Chancellor [2018] EWHC 1628 (Fam), Francis J. The short disposal of the case – the judgment on BAILII discloses no justiciable issue – is accompanied by a paper entitled Position of the LAA as to the application of the statutory charge in relation to care costs and Human Rights Act applications (February 2018).

The question of the statutory charge and the LAA and judicial failures to take any notice of Hanlon has been considered exhaustively: see eg HRA damages and legal aid: a Pyrrhic exercise? (DB family law blog) and Statutory charge or Pyrrhic damages?  (New Law Journal) both in March 2017; and Legal aid statutory charge: human rights damages in children proceedings in Family Law journal, November 2018. For a summary of the operation of the charge see Family Court Practice 2018 (aka The Red Book) under LASPOA s 25. It was all well tilled ground in other statutory charge case law such as Curling v The Law Society [1985] 1 WLR 470, CA; Watkinson v Legal Aid Board [1991] 1 WLR 419, [1991] 2 FLR 26, CA and Till v Till [1974] QB 558, [1974] 2 WLR 447, CA.

The terms of the present “statutory charge” provisions in s 25 are the same, in their effect, as in Legal Aid Act 1974 (in operation at the time of Hanlon). In a nod to the House of Lords, the LAA position paper says:

“6. The application of section 25(1) LASPO contains two components: identification of the proceedings or dispute in which the damages are recovered and establishing the legal aid expenditure provided in connection with those proceedings or dispute….”

(1) The first component of these is correct (see Hanlon at 186G-H); but then the person diagnosing or advising whether the charge applies must take further steps:

(2) Identify the property (ie including money: eg damages or a matrimonial lump sum) which could later be subject to the charge in the proceedings;

(3) Work out, was the property in issue (or part of a compromise) in the proceedings (eg property will not be in issue in periodical payments only proceedings); and

(4) If the property was in issue in the proceedings – but only then – it will have been “recovered or preserved” in terms of LASPOA s 25(1) and the legal aid statutory charge will applies in respect of the costs of the proceedings.

Each of these four steps must be defined to decide whether the charge applies. Each can be deduced from, and be clarified by, Hanlon. The four steps were part of the standard training of 1980s legal aid staff. It is not clear why these steps were not outlined to the judges who dealt with the earlier HRA damages claims.

Confidentiality: a definition

In the Spycatcher case, Attorney General v Guardian Newspapers Ltd (No 2) [1988] UKHL 6; [1990] 1 AC 109, 281 Lord Goff offered a definition of ‘confidentiality’, which has remained the bench-mark (see eg Confidentiality by Phipps and Toulson, (3rd Edition, 2012)):

“I start with the broad general principle (which I do not intend in any way to be definitive) that a duty of confidence arises when confidential information comes to the knowledge of a person (the confidant) in circumstances where he has notice, or is held to have agreed, that the information is confidential, with the effect that it would be just in all the circumstances that he should be precluded from disclosing the information to others. I have used the word ‘notice’ advisedly, in order to avoid the (here unnecessary) question of the extent to which actual knowledge is necessary; though I of course understand knowledge to include circumstances where the confidant has deliberately closed his eyes to the obvious. The existence of this broad general principle reflects the fact that there is such a public interest in the maintenance of confidences, that the law will provide remedies for their protection.”

The issue of legal aid and confidentiality was raised by R v Snaresbrook Crown Court, ex p Director of Public Prosecutions [1988] 1 QB 532. There it was ‘legal privilege’ as it is called by Police and Criminal Evidence 1984 (PACE 1984) s 10(2). In Snaresbrook, in criminal proceedings, A had pleaded guilty to a charge of assault. He complained through his solicitors that at the time of his arrest he had been assaulted by a named police officer and his nose broken. A applied for legal aid to bring an action for assault. Police inquiries revealed that his nose had been broken two days earlier. He was charged with attempting to pervert the course of justice.

In that second case, the prosecution requested production by the Law Society (then responsible for administration of legal aid) of A’s application form. The office declined. The DPP sought an order under PACE 1984 s 9 on the ground that the form was ‘special procedure material’. The Crown Court held that the form was privileged under PACE 1984 s 10(1), that it was not held by The Law Society with the intention of furthering a criminal purpose within the meaning of s 10(2). The judge refused to order production.

PACE 1984 s 10 (as relevant) defines “legal privilege”:

“(1) Subject to subsection (2) below, in this Act ‘items subject to legal privilege’ means — …

(b) communications between a professional legal adviser … or his client … and any other person made in connection with or in contemplation of legal proceedings and for the purposes of such proceedings; …

(2) Items held with the intention of furthering a criminal purpose are not items subject to legal privilege.”

The DPP application for judicial review was refused. A was the client of a professional legal adviser and the legal aid application a communication between him and The Law Society for legal proceedings. It was therefore within the definition of items subject to “legal privilege” under s 10(1), and could not be “special procedure material”.

“Legal privilege” is a term adopted by Parliamentary draftspersons (see s 10(1) above and eg Bowman v Fels [2005] EWCA Civ 226[2005] 1 WLR 3083 on Proceeds of Crime Act 2002 Pt 7). The term “legal privilege” has been held to provide a definition of legal professional privilege (R v Central Criminal Court, ex p Francis & Francis [1989] AC 346).

Confidentiality, Snaresbrook and what can the LAA disclose?

So what may LAA release to anyone else and especially to Secretary of State for Justice (or Lord Chancellor). In Snaresbrook, Glidewell LJ considered in particular the extent to which The Law Society could disclose information. The Legal Aid Act 1974 s 22 said, so far as was material to that case:

“(1) Subject to subsection (2) below, no information furnished for the purposes of this Part of this Act to The Law Society, or to any committee or person on their behalf, in connection with the case of a person seeking or receiving advice or assistance or legal aid shall be disclosed otherwise than …

(b) for the purpose of any criminal proceedings for an offence under it or of any report of such proceedings.”

Subsection (2), to which reference is made, relates to disclosure of information where the person whom the case is against consents. By subsection (3) it is provided:

“A person who, in contravention of this section, discloses any information obtained by him when employed by or acting on behalf of The Law Society shall be liable on summary conviction to a fine not exceeding £100.”

So what about permitted LAA disclosure in 2018? LASPOA s 34 says that “information” provided by “an individual seeking or receiving” legal aid (s 34(1)) “must not be disclosed” (s 34(2)), save as set out in s 35.

“34. Restriction on disclosure of other information

(1) This section applies to information that is provided—

(a) to the Lord Chancellor, the Director, a court, a tribunal or any other person on whom functions are imposed or conferred by or under this Part, and

(b) in connection with the case of an individual seeking or receiving services provided under arrangements made for the purposes of this Part.

(2) Such information must not be disclosed, subject to the exceptions in section 35.

(3) A person who discloses information in contravention of this section is guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale.”

Under s 35 (referred to in s 34(2) and as relevant here) “disclosure of information” is not prevented to enable or assist the Secretary of State for Justice “to carry out functions” under LASPOA 2012 or otherwise; or to enable LAA to carry out its functions or courts or others “on whom functions are imposed or conferred by” the Act; or under a court order, in relation to a prosecution, or otherwise “for the purposes of instituting, or otherwise for the purposes of, proceedings before a court…”

If s 35 is not clear to a LAA employee, Spycatcher (cited above) provides the common law approach to confidentiality (which applies to any information on a LAA file):

“… A duty of confidence arises when confidential information comes to the knowledge of a person (the confidant) in circumstances where he has notice, or is held to have agreed, that the information is confidential, with the effect that it would be just in all the circumstances that he should be precluded from disclosing the information to others….”

Surely any LAA person would know by reference to this and Snaresbrook that information passed to the agency was confidential, and that, accordingly, it could not be passed on?

Legal Aid Agency: ‘legal privilege’ and disclosure under LASPOA 2012 s 34

What does all this mean? Legal Aid Act 1974 s 22 is more restrictive than LASPOA 2012 ss 34 and 35 of what may be disclosed by legal aid authorities to third parties; but the meaning of s 22, and thus of the reach of LASPOA 2012 s 35 in terms of confidentiality, is explained by Snaresbrook. The case still applies to confidentiality, legal professional privilege and any legal aid application. Glidewell LJ explains this (at [1988] QB 532, 536G) as, in effect, “litigation privilege”:

“The application for legal aid, on the face of it, is a communication between him and another person, namely, the area officer of The Law Society. Clearly it was made in contemplation of and for the purpose of legal proceedings. On the face of it the material does come within the definition of items subject to legal privilege in [PACE 1984] s 10(1).”

So far as the LAA leaks are concerned the material they include can be taken to include matters covered both by confidentiality (see Lord Goff’s definition in Spycatcher (above)) and by the more protective confidentiality provided by LPP. A person does not waive privilege because he or she passes documents otherwise covered by privilege to a third party (B v Auckland District Law Society (New Zealand) [2003] UKPC 38, [2003] 2 AC 736), such as LAA.

The press report I have seen is not enough to tell me that s 34(2) (subject to the exceptions in s 35) has been breached; but, even with what has been said, there seems to be a slackness in LAA and a lack of stringency in its relations with Lord Chancellor and other government departments. Proceedings under s 34 can only be taken with the consent of the Director of Public Prosecutions (LASPOA 2012 s 34(5)). Should she be looking into this a little more?

If the LAA decides to review the limits on disclosure under s 34, perhaps at the same time they could check out a few cases (see eg ICLR reports) such as Snaresbrook (disclosure outside the director’s office) and Hanlon v Law Society (application of the statutory charge). Oh and, a little revision on the meaning of confidentiality and legal professional privilege wouldn’t go amiss.

David Burrows

6 October 2018

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