Kelly, R (on the application of) v Warley Magistrates Court & Anor [2007] EWHC 1836 (Admin)

[2007] EWHC 1836 (Admin)

Case No CO/10678/2006

IN THE HIGH COURT OF JUSTICE

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 31/07/2007

Before

LORD JUSTICE LAWS

MR JUSTICE MITTING

Between

The Queen on the Application of KellyAppellant

Warley Magistrates CourtRespondent

The Law SocietyInterveners

(Transcript of the Handed Down Judgment of

Smith Bernal Wordwave Limited, 190 Fleet Street

London EC4A 2AG

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Mr R de Mello and Mr D Bazini (instructed by McGrath & Co) for Appellant

Mr R Tedd and Mr T Watkin (instructed by the Treasury Solicitor) for Crown Prosecution Service

Mr David Perry QC (instructed by the Legal Services Department) for Law Society

Hearing Hearing dates: 20 June & 6 July 2007

Judgement

Lord Justice Laws :

INTRODUCTORY

[1]This is a judicial review of a decision by Deputy District Judge Stott, sitting at the Warley Magistrates Court on 24 November 2006, by which he directed that the defence should disclose to the Crown Prosecution Service (“the CPS”) the names, addresses and dates of birth of all potential defence witnesses in connection with the claimant’s forthcoming trial by 5 pm on 22 November 2006. Judicial review permission was granted by Forbes J on the papers on 1 February 2007. The case involves questions as to the scope of legal professional privilege (“LPP”) and litigation privilege (“LP”), the nature of the legal authority that is required if these privileges are to be lawfully overridden, and the proper construction of provisions contained in the Criminal Procedure Rules 2005 (“the CrPR”).

THE FACTS

[2]The claimant is charged with criminal damage. The case against him is that he kicked the door of a police vehicle outside a public house on 1 July 2006. There were apparently a lot of people at the scene who witnessed his arrest. He has pleaded not guilty and is to be tried at the Warley Magistrates Court. He has not indicated what is his defence to the charge or what the issues are. On 21 September 2006 a pre-trial review was held at the Magistrates Court. The Legal Adviser to the Justices directed that the defence should serve on the prosecution the full names, dates of birth and addresses of all defence witnesses who were to be called at trial. The terms of the direction were:

“The defence provide details within 14 days to the prosecution (ie by 5 October 2006) of their witnesses to enable the prosecution to consider any issues in relation to making applications to admit bad character information under the provisions of the Criminal Justice Act 2003”

. The claimant’s representative questioned whether such a direction could lawfully be made. A further case management hearing took place on 24 November 2006. Deputy District Judge Stott enquired what were the reasons why the earlier disclosure direction had not been complied with, as it had not. The answer given was that s.34 of the Criminal Justice Act 2003 (“the 2003 Act”), introducing s.6C into the Criminal Procedure and Investigations Act 1996 (“the 1996 Act”) which would in terms impose a requirement of such disclosure, had not yet been brought into force. I shall set out the terms of s.6C (and other material statutory provisions, forthcoming and in force) in due course.

[3]On 24 November 2006 the deputy district judge reaffirmed the direction, indicating in effect that it was in the interests of openness and fairness and good case management. The claimant lodged an application for judicial review permission on 20 December 2006. The question in the case is whether the Magistrates Court had the legal power to make the direction it did.

THE STATUTES

[4]It is to be assumed that the deputy district judge acted, or purported to act, pursuant to Part 3.5(1) of the CrPR, or Part 3.5(1) read with Part 3.10. The changes in criminal procedure ushered in by the CrPR are of the first importance. They are intended to promote active case management, as has been done by the Civil Procedure Rules. By Part 3.5(1), in fulfilling its duty to further the overriding objective (that criminal cases be dealt with justly, provided for by Part 1) by actively managing the case, “the court may give any direction and take any step unless that direction would be inconsistent with legislation, including these rules”. Part 3.5(2) permits the court to specify the consequences of failing to comply with a direction. Part 3.10:

“In order to manage the trial, the court may require a party to identify (a) which witnesses he intends to give oral evidence; … (f) what written evidence he intends to introduce; (g) what other material, if any, he intends to make available to the court in the presentation of the case; (h) whether he intends to raise any point of law that could affect the conduct of the trial or appeal…”

[5]For reasons which will become apparent the vires of the CrPR in primary legislation is important. It is to be found in s.69 of the Courts Act 2003. I need cite only s.69(4):

“Any power to make… Criminal Procedure Rules is to be exercised with a view to securing that – (a) the criminal justice system is accessible, fair and efficient, and (b) the rules are both simple and simply expressed.”

[6]Next it is convenient to set out the relevant provisions of the 1996 Act which are not yet in force. “6C(1) The accused must give to the court and the prosecutor a notice indicating whether he intends to call any persons (other than himself) as witnesses at his trial, and if so –(a) giving the name, address and date of birth of each such proposed witness, or as many of those details as are known to the accused when the notice is given;

(b) providing any information in the accused’s possession which might be of material assistance in identifying or finding any such proposed witness in whose case any of the details mentioned in paragraph (a) are not known to the accused when the notice is given.” I need not read the balance of the section. Then s.11:

“(1) This section applies in the three cases set out in subsections (2), (3) and (4). ... (4) The third case is where the accused – ... (b) at his trial calls a witness (other than himself) not included, or not adequately identified, in a witness notice. (5) Where this section applies – (a) the court or any other party may make such comment as appears appropriate; (b) the court or jury may draw such inferences as appear proper in deciding whether the accused is guilty of the offence concerned.”

[7]I should also refer to s.21A of the 1996 Act. It too was inserted by the 2003 Act. S.21A(1) requires the Secretary of State to “prepare a code of practice which gives guidance to police officers, and other persons charged with the duty of investigating offences, in relation to the arranging and conducting of interviews of persons – ... (b) who are included as proposed witnesses in a notice given under section 6C.” The code of practice there envisaged has not yet been promulgated; indeed the consultation process which by s.21A(4) (which I need not set out) must precede it has not yet been concluded.

[8]In light of the arguments canvassed before us I should also cite s.100 of the 2003 Act, which is cross-headed “Non-defendant’s bad character”:

“(1) In criminal proceedings evidence of the bad character of a person other than the defendant is admissible if and only if - (a) it is important explanatory evidence, (b) it has substantial probative value in relation to a matter which - (i) is a matter in issue in the proceedings, and (ii) is of substantial importance in the context of the case as a whole...”

THE PRINCIPAL ISSUE

[9]When the case was argued before us on 20 June 2007 it rapidly became apparent that although there were other points the outcome was likely to depend on the answers to two related questions of no little importance. The first was whether the direction made by the deputy district judge required the claimant to disclose material which was subject to LPP or LP enjoyed by him. The second was whether, if it did, the deputy district judge possessed the power to make such an order and in particular whether the CrPR authorised him to do so. On 20 June 2007 Mr Watkin for the CPS, who had been briefed late to defend the direction, was inclined (in light of China National Petroleum Corporation

[2002] EWHC Ch 60

to which I will come) to concede the former issue and was in difficulty in relation to the latter. In the circumstances we decided to adjourn the proceedings so that we might receive more substantial assistance on behalf of the CPS. I wish to emphasise that this is no criticism whatever of Mr Watkin who was faced with some deep questions at virtually no notice. In any event, in light of the importance of these issues relating to LPP and LP, we desired to hear oral submissions from Mr Perry QC for the Law Society as intervener (he had earlier put in a written skeleton argument with my permission). So it was that when the matter was restored for further hearing on 6 July 2007 we had the advantage of argument from Mr Tedd QC for the CPS and Mr Perry.

[10]It is convenient at this stage to identify and dispose of the other arguments in the case, aside from those relating to privilege.

SUBSIDIARY ARGUMENTS

[11]These lesser points are most conveniently gathered from Mr Perry’s skeleton of 29 May 2007. They may be grouped under four heads as follows.(1) The enactment of a comprehensive statutory scheme (ss.6C, 11 and 21A of the 2003 Act) for the disclosure of witness details, sanctions for failure to disclose, and a code of guidance for police conduct in relation to such disclosed material) is a powerful indicator that in criminal litigation such disclosure, at any rate by the defence, should not be required under other provisions (the CrPR), which are not comprehensive and do not provide for proper sanctions in the event of failure to comply. It is to be noted, as I have said, that no code of practice has been issued under s.21A, the envisaged consultation process has not been completed, and the primary provisions contained in ss6C and 11 are not yet in force. Mr Perry submits that it is to be inferred that the legislature has proceeded on the premise that there exists no other statutory power to require and enforce such disclosure in criminal cases; the new code is, or will, be exhaustive as well as comprehensive.

(2) There was no substantial justification for the deputy district judge’s direction in case management terms. Checks on the proposed defence witnesses could be undertaken during the forthcoming trial.

(3) The assumption of a power to make such a direction pays insufficient regard to the complexities of the solicitor/client relationship in criminal cases, especially if (as is contended was done here) the order is intended to bind the legal representative. In particular the solicitor may be required to disclose matters which are confidential to the client, and that would be highly damaging. This submission by Mr Perry touches, but is not as I understand it limited to, issues of LPP and LP.

(4) The interests of the witnesses themselves have not been considered. They may legitimately expect their personal details will be kept confidential until they step into the witness box. Without a firm legal foundation for the order, it may therefore breach their rights arising under

Article 8 of the European Convention on Human Rights

(“ECHR”). Knowledge that such an order may be made may act as a powerful deterrent against witnesses coming forward to assist the defence. This Article 8 theme was more extensively developed by Mr de Mello for the claimant, who also prayed in aid Article 14, on the footing that prosecution witnesses are treated differently from witnesses for the defence. He submitted also that there was a want of “equality of arms” within the principles of

ECHR Article 6

[12]There is nothing in (2). There are obvious advantages in case management terms in the prosecution having defence witness details in advance of the trial so that Criminal Record Office (“CRO”) checks may be made without that causing delay in the trial itself. This point, moreover, manifestly does not go to the deputy district judge’s jurisdiction to make the order, but at most to wisdom or utility of his doing so; matters which this court will not second-guess in judicial review proceedings, and certainly not while the prosecution remains ongoing.

[13]The use which the CPS intend to make of the disclosed information (as I understand, only to carry out CRO checks) is also material, in my judgment, to the submissions based on the ECHR ((4) above), which with respect I may deal with very shortly. Even if, which is I think doubtful, disclosure of the witnesses’ names and addresses to the prosecution were without more capable of interfering with their private or family life within the meaning of Article 8(1), it would be well justified under Article 8(2) “for the prevention of crime” – that is, in context, for the more efficient and expeditious administration of criminal proceedings. The need for good case management would justify the measure. There is nothing in the points on Article 6 or 14.

[14]As regards Mr Perry’s reliance on the forthcoming statutory regime to be constituted by ss.6C, 11 and the code under s.21A ((1) above), these are matters of some importance in showing how a case management scheme requiring defence witness disclosure might properly and efficiently operate; but I doubt whether this inchoate legislation can of itself bear the inference that the CrPR provide no power to do what the deputy district judge did.

[15]There remains Mr Perry’s point (3). So far as this argument advances prudential, rather than jurisdictional, reasons why the direction should not have been given, it cannot prevail in this court. Just as with the submission on case management, we should not grant judicial review relief according to any particular perception of the merits of this or that view of the direction’s impact on client confidentiality. But as I have already indicated, in this context Mr Perry raises issues concerning LPP and LP.

[16]LPP and LP are at the centre of the case. There is nothing in the subsidiary points. There are two questions, which I have already formulated but repeat for convenience.(1) Did the direction made by the deputy district judge require the claimant to disclose material which was subject to LPP or LP enjoyed by him?

(2) If so, did the deputy district judge possess the legal authority to make such an order – in particular, was he so authorised by the CrPR?

LITIGATION PRIVILEGE AND LEGAL PROFESSIONAL PRIVILEGE

[17]It is convenient first to say something of litigation privilege. The argument before us was at first focussed on LPP, so that the claimant’s solicitor’s role seemed specially important: was the identity of the witnesses to be called covered by LPP as being the fruits of the solicitor’s legal advice? It was in this context that on 20 June 2007 Mr Watkin was inclined to concede that the direction intruded upon a privilege enjoyed by the claimant. He did so, as I have said, in light of China National Petroleum Corporation

[2002] EWHC Ch 60

. In that case it was contended by the claimants, among other things, that there was a strong prima facie case to the effect that a party had obtained from a potential witness certain confidential information. In the course of dealing with an application for a disclosure order the Vice Chancellor (as he then was) said this:

“44. Litigation privilege exists because it is in the public interest that litigants should seek and obtain confidential advice in respect of actual or contemplated litigation. There is no such privilege where the communications are not made in the usual course of the solicitor’s retainer because, for example, they are made in furtherance of a crime or fraud… 45. In the normal course of proceedings a solicitor will interview and obtain proofs of evidence from all manner of potential witnesses for use in actual or prospective litigation. Both the information given and the identity of the person supplying it are confidential and privileged unless and until the privilege is waived by that person giving evidence in the proceedings or some other equivalent action. This was and is recognised in the common form claim to privilege contained in the former affidavit of documents as well as in the present disclosure statement in neither of which was or is the name of the witness who has given the proof revealed.”

[18]This passage might with great respect be thought to suggest that LP is a sub-class of LPP. But it is clear that LP can arise without the involvement of any legal adviser. A litigant in person enjoys it. It was described by Lord Rodger of Earlsferry in Three Rivers DC

[2005] 1 AC 610

as follows:

“52. Litigation privilege relates to communications at the stage when litigation is pending or in contemplation. It is based on the idea that legal proceedings take the form of a contest in which each of the opposing parties assembles his own body of evidence and uses it to try to defeat the other, with the judge or jury determining the winner. In such a system each party should be free to prepare his case as fully as possible without the risk that his opponent will be able to recover the material generated by his preparations. In the words of Justice Jackson in Hickman v Taylor (1947) 329 US 495, 516, ‘Discovery was hardly intended to enable a learned profession to perform its functions either without wits or on wits borrowed from the adversary’.”

[19]Mr Watkin for the CPS was at first inclined to contend (but faintly) that LP (or LPP) in principle attaches only to communications between client and solicitor, and not to the identity of a prospective witness. He cited Ex parte Hicks [1978] 1 AER 25. That case, however, concerned an order by justices that solicitors, acting for a criminal defendant, should produce a particular document (a power of attorney) which was suspected to be a forgery. The Divisional Court rejected the solicitors’ argument that the document was subject to LPP, holding that the client would possess no lawful basis to prevent the document’s seizure from him and in those circumstances the solicitors could be in no better position.

[20]Ex p. Hicks is with respect of no assistance in the present case, and in my judgment it is clear that litigation privilege attaches to the identity and other details of witnesses intended to be called in adversarial litigation, civil or criminal, whether or not their identity is the fruit of legal advice. Indeed in the course of argument on 20 June 2007 Mr Watkin, as I have indicated, felt constrained to concede as much. On 6 July, however, Mr Tedd sought to resurrect the point. He submitted that a party has no legitimate interest in protecting the identity of witnesses he intends to call until a late stage in the litigation. I do not agree. The slippage in this argument is in the word “legitimate”. The party may plainly have a strong interest – “legitimate” from his point of view – in keeping his powder dry. The practical availability of the witness may in some circumstances depend upon his doing so. It is true that contemporary principles as to the proper conduct of litigation, including criminal litigation, accord greater weight – “legitimacy” – to the dictates of good case management. The forthcoming provisions contained in ss.6C and 11 of the 1996 Act demonstrate as much. But this cannot, in my judgment, of itself extract the litigant’s historic right not to disclose his case until he presents it from the categories of protection, LP and where it applies LPP, where in principle it belongs.

[21]Next I should say that it is in my view of some importance to be clear that in the debate before us the role of the legal adviser is not critical: LP would attach to the identity of the witnesses the subject of the direction just as surely whether the claimant were represented or not. As it happens the case is also one of LPP: the claimant has in fact been represented by a solicitor, and on the Vice-Chancellor’s authority in China National Petroleum Corporation the identity of the witnesses fall to be regarded as the fruit of legal advice. But it was perfectly apt that the deputy district judge’s direction (if it was apt to be made at all) should be directed to “the defence”: a formula that is indifferent as between the claimant and his solicitor.

[22]The distinction between LPP and LP is in the result immaterial for the purposes of what we must decide. In any event they share a common, at least an overlapping, rationale. That is I think made good by a comparison of Lord Rodger’s treatment of LP in Three Rivers with what was said about LPP by Lord Taylor of Gosforth CJ in R v Derby Magistrates Court, Ex parte B

[1996] AC 487

“The principle which runs through all these cases, and the many other cases which were cited, is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests.”

LPP of course extends to the giving and taking of legal advice in contexts far away from litigation, as well as for the purposes of litigation. But in the arena of adversarial litigation the rationale of LP and LPP rests in the need to protect the confidentiality which a litigant must enjoy in the materials which he or his lawyers prepare for the presentation of his case. So much is demonstrated by the passage I have cited from Lord Taylor, and also by what in Three Rivers Lord Rodger went on to say about “legal advice privilege”. After citing Scottish authority of the 17th century he continued (at paragraph 54):

“[T]he public interest justification for the privilege is the same today as it was 350 years ago: it does not change, or need to change, because it is rooted in an aspect of human nature which does not change either. If the advice given by lawyers is to be sound, their clients must make them aware of all the relevant circumstances of the problem. Clients will be reluctant to do so, however, unless they can be sure that what they say about any potentially damaging or embarrassing circumstances will not be revealed later. So it is settled that, in the absence of a waiver by the client, communications between clients and their lawyers for the purposes of obtaining legal advice must be kept confidential and cannot be made the subject of evidence.”

And there is a wealth of other authority, much of it cited by Lord Scott of Foscote and Lord Carswell in Three Rivers. We may with respect take it, certainly for present purposes, that the imperative force of LP and LPP is in effect the same. If there were no confidentiality such as both rights protect, and every litigant were liable to disclose the building blocks of his case stage by stage as they were developed, the scope for witnesses being discouraged, false points being taken, and the truth being distorted would surely be very greatly increased.

PROPOSED JUSTIFICATIONS OF THE DIRECTION TO DISCLOSE

[23]Here, the subject-matter of the deputy district judge’s direction is covered by both LP and LPP. And on the face of it the direction overrode those rights. As I have said, it is to be assumed that the deputy district judge acted, or purported to act, pursuant to Part 3.5(1) of the CrPR, or Part 3.5(1) read with Part 3.10. Did those provisions empower him to do as he did?

[24]The CPS’ first case was that the CrPR read with s.100 of the 2003 Act provides ample legal authority. CrPR Part 35 regulates the procedure for applications to adduce bad character evidence under s.100. Part 35.2 provides:

“A party who wants to introduce evidence of a non-defendant’s bad character... under section 100 of the Criminal Justice Act 2003 must apply in the form set out in the Practice Direction and the application must be received by the court officer and all other parties to the proceedings - (a) not more than 14 days after the prosecutor has complied or purported to comply with section 3 of the Criminal Procedure and Investigations Act 1996 (disclosure by the prosecutor); or(b) as soon as reasonably practicable, where the application concerns a non-defendant who is to be invited to give (or has given) evidence for a defendant.”

It is submitted (obviously enough) that if the prosecution are to make a proper and timely decision whether to seek leave to put in a defence witness’s bad character, they must clearly have available the identity and basic details of the witness. Unless that material is in their hands in advance there will be undesirable and unacceptable mid-trial delays which will be wholly inimical to the overriding objective and contrary at least to the spirit of Part 35.2.

[25]This argument ignores the fact that LP and LPP are properly characterised as basic or fundamental rights: see Lord Taylor in Ex p. B. Such a right may only be intruded upon by force of subordinate legislation if the statute providing the subordinate instrument’s vires makes it plain by express words or necessary implication that such an authority was intended to be conveyed. In Morgan Grenfell

[2003] 1 AC 563

Lord Hobhouse of Woodborough said this:

“45 It is accepted that the statute does not contain any express words that abrogate the taxpayer’s common law right to rely upon legal professional privilege. The question therefore becomes whether there is a necessary implication to that effect. A necessary implication is not the same as a reasonable implication as was pointed out by Lord Hutton B (A Minor) [2000] AC 428, 481. A necessary implication is one which necessarily follows from the express provisions of the statute construed in their context. It distinguishes between what it would have been sensible or reasonable for Parliament to have included or what Parliament would, if it had thought about it, probably would have included and what it is clear that the express language shows that the statute must have included. A necessary implication is a matter of express language and logic not interpretation. 46 In the present case the statutory language falls a long way short of meeting this criterion...”

In Bowman v Fels

[2005] 1 WLR 3083

the Court of Appeal had to decide whether provisions contained in the Proceeds of Crime Act 2002 were effective to authorise disclosures which would override legal professional privilege. After citing the passage from Lord Hobhouse’s speech in Morgan Grenfell which I have just set out, Brooke LJ giving the judgment of the court referred to the provisions in question and continued: “87… Much stronger language would have been required if S.328 could be interpreted as bearing a necessary implication that legal professional privilege was to be overridden. As Lord Hoffman said in Ex parte Simms

[2000] 2 AC 115

, 131...: ‘Fundamental rights cannot be overridden by general…words’”.

[26]Accordingly no appeal to the overriding objective of the CrPR or the good sense of a regime which would confide defence witnesses’ details to the prosecution so that they might deploy s.100 of the 2003 Act without causing delay can vest the CrPR with authority to allow the Magistrates Court to override the claimant’s LP and LPP, unless the main legislation containing the CrPR’s vires conferred such authority by express words or necessary implication. But there is nothing of the kind to be found in s.69 of the Courts Act 2003. This argument, therefore, is a bad one.

[27]At the resumed hearing on 6 July 2007 Mr Tedd QC advanced another submission altogether. It was to the effect that even if the witness details fell within the protection of LP and LPP, and even if those rights could only be interfered with on the authority of express or necessarily implicit provisions in primary legislation, there was no offence here because on a proper understanding of its effect the deputy district judge’s direction did not in fact deny the claimant’s LP or LPP. So stated the argument looks like an exercise in escapology. Its substance depends, however, on an examination of the reasoning of Hoffmann J as he then was in Comfort Hotels Ltd [1988] 3 AER 53.

[28]In Comfort Hotels, shortly before the action was due to be heard,the plaintiff issued a summons under RSC Order 38 r.2A for an order that the parties be required to exchange written statements of the evidence which they intended to lead at the trial. The defendant contended that such an order would violate its privilege not to disclose communications obtained from witnesses for the purpose of litigation. Order 38 r.2A in part provided:

“(2) At any stage in any cause or matter to which this rule applies, the Court may, if it thinks fit for the purpose of disposing fairly and expeditiously of the cause or matter and saving costs, direct any party to serve on the other parties, on such terms as the Court shall think just, written statements of the oral evidence which the party intends to lead on any issues of fact to be decided at the trial. (3) Directions given under paragraph (2) may – (a) make different provision with regard to different issues of fact or different witnesses; (b) require any written witness statement served to be signed by the intended witness; (c) require that statements be filed with the Court. (5) ... [U]nless the Court otherwise orders, where the party serving the statement does call such a witness at the trial – (a) the party may not without the consent of the other parties or the leave of the Court lead evidence from that witness the substance of which is not included in the statement served, except in relation to new matters which have arisen in the course of the trial; (b) the Court may, on such terms as it thinks fit, direct that the statement served, or part of it, shall stand as the evidence in chief of the witness or part of such evidence; (c) whether or not the statement or any part of it is referred to during the evidence in chief of the witness, any party may put the statement or any part of it in cross-examination of that witness. (7) Where a party fails to comply with a direction given under paragraph (2) he shall not be entitled to adduce evidence to which such direction related without the leave of the Court. (8) Nothing in this rule shall deprive any party [of his right] to treat any communication as privileged or make admissible evidence otherwise inadmissible.”

[29]As Hoffmann J noted (55j) when this rule was introduced the editors of the Supreme Court Practice described it as “an outstanding and far-reaching change in the machinery of civil justice”. Hoffmann J continued (56f-g):

“Counsel for the defendant put his primary objection in two ways. First, he said that on its true construction r.2A(8), which preserved the right to rely on privilege, allowed him to object on the grounds that the production of the statements would infringe his privilege not to disclose the contents of communications received from witnesses for the purposes of the litigation. Second, he said that if, as a matter of construction, the rule had the effect of overriding that privilege, it was ultra vires the Supreme Court Rule Committee under the Supreme Court Act 1981.”

Hoffmann J stated (56h):

“There is no doubt that a party has a privilege which entitles him to refuse to disclose, whether by way of discovery or in oral evidence, the statements which have been made to him by potential witnesses or other persons for the purposes of litigation.”

He cited examples, and observed (57B) that “[t]he privilege is therefore a strong one”. His brief discussion of the vires of Order 38 r.2A, namely s.84 of the Supreme Court Act 1981, shows (by reference to an observation of Lord Denning MR in Re Grosvenor Hotel (No 2)

[1965] Ch 1210

, 1243) that s.84 did not empower rules which would infringe a litigation party’s privilege against disclosure. The question, however, was whether Order 38 r.2A had that effect. Hoffmann J reasoned as follows (57j – 58d):

“Order 38 r.2A has the effect of empowering the court to make it a condition of a party’s ability to lead oral evidence at the trial that he should have given prior notice of such evidence in the form of a written statement served on the other parties. It does not mean that he can be compelled to disclose any document or information. Anything which he does not wish to disclose he may still keep to himself. It is only if he wants to disclose the information by way of evidence at the trial that he may now be required as a precondition to disclose it in written form in advance. What the rule therefore does is to advance the moment at which a party must examine information he has gathered for the purposes of the trial and decide what he is going to use and what he is going to withhold... In my judgment, therefore, the privilege which is preserved by Ord. 38 r.2A(8) is not infringed by a requirement for the service of statements under para. (2), nor does the making of the rule override the privilege. In my view the privilege remains intact and the rule merely regulates the practice and procedure of the court relating to the way in which oral evidence may be given. I accept, of course, that, in deciding what is a matter of practice and procedure and what is the general law of evidence, one must look at the effect of the rule rather than merely the way in which it is expressed. For example, a rule which prohibited a party from adducing any oral evidence whatever unless he had previously made discovery of information protected by privilege, whether he wanted to use such information in evidence or not, would clearly be an attempt to change the rules of evidence and discovery.”

[30]Mr Tedd submits that CrPR Part 3.5(1) read with Part 3.10 does no more than make provision for an aspect of the practice and procedure of the court, just as Hoffmann J held was done by RSC Order 38 r.2A. If that is right, the relevant rules are intra vires the enabling Act, and the deputy district judge’s direction is good, notwithstanding that(a) the subject-matter of the direction – the witnesses’ details – is privileged in the claimant’s hands, and

(b) LP and LPP can only be overridden or infringed by express provision or necessary implication in the enabling primary legislation.

CONCLUSION

[31]It is I think clear that the existence and nature of the sanction for non-compliance with a paragraph (2) direction, set out in Order 38 r.2A(7), played an important part in Hoffmann J’s reasoning. Read with the other provisions of r.2A it showed that the paragraph (2) power was no more than a mechanism for the regulation by the court of the use of oral evidence. It formed part of what we might nowadays call a case management code. The effect was merely to set conditions on the right to deploy live evidence. The privilege attaching to the material was untouched. This is not the only circumstance in which, as a matter of practice and procedure, a party may have to waive privilege if he is to secure a certain result. In a very different context, criminal lawyers are familiar with the practice in the Court of Appeal Criminal Division by which an appellant who seeks to complain of the quality of his representation at trial is asked to waive his privilege in his trial lawyers’ advice, so that solicitors and counsel are free to explain their actions and decisions to the court. I am not aware that the practice is embodied in a rule, but there is no reason why it should not be.

[32]In my judgment a power to require disclosure of privileged material may only be characterised as doing no more than regulating practice and procedure if it forms part of a code (I mean only a series or group of provisions – “code” is not a term of art) having that purpose. If such a power is open-ended, not coloured and confined by moderate procedural sanctions for breach, it is likely to be regarded by the courts as an attempt to infringe privilege as such; and that will be unlawful unless strictly authorised by express provision or necessary implication in primary legislation. In China National Petroleum Corporation the order sought was unconditional. Examples given by Hoffmann J in Comfort Hotels of orders which did not survive challenge on privilege grounds (see 55j – 56b, 58a-c) can be seen to have been made purely for the purposes of discovery and not to regulate the procedures for adducing evidence.

[33]I have referred to “moderate” procedural sanctions. “Proportionate” might be a better term. In my judgment this is an important condition to be met if a rule is to be treated as no more than a procedural regulation. In principle such a rule must provide for no more than might reasonably be required for the proper working of such a regulation. If it goes further, it will not be categorised as procedural only. It will be liable to be treated as purporting to change the general law of evidence. Unconditional orders for disclosure of privileged material plainly exceed this boundary. So, I think, would a rule which absolutely prohibited a party – with no discretion in the trial court – from calling a witness whose identity he had not disclosed in advance. Such a rule would exceed the requirements of a reasonable regulatory regime. Though their validity is not of course dependent on it (since they are found in main legislation) the forthcoming measures contained in ss.6C and 11 of the 1996 Act, together with the code to be promulgated under s.21A, are true regulatory measures.

[34]I return to the direction in the present case. It was unconditional. It is true, as I have said, that CrPR Part 3.5(2) permits the court to specify the consequences of failing to comply with a direction. But that is an open-ended provision, which is itself, I think, a problematic circumstance in this context. Where an order apparently infringes LP or LPP, absent a justification in main legislation I think it can be saved only by a case management code having the characteristics I have described, and not a regime of judicial discretion.

[35]But that is an issue that may have to await another day, since in any event no such consequences were specified here. In the result the deputy district judge’s direction cannot in my judgment be seen as an exercise in case management, undertaken within a regulatory regime limited to that purpose. It may be that it is futile rather than unlawful; or at least a request, rather than an effective order. I would quash it. Mr

Justice Mitting:

[36]I agree that the Deputy District’s direction should be quashed, for the reasons given by Laws LJ. I add a few words of my own to emphasise the distinction between an unconditional order for the disclosure of the names, addresses, and dates of birth of potential witnesses and an order that procedural sanctions may be imposed if advanced disclosure of such matters is not made. The former infringes litigation privilege and may also infringe legal professional privilege. The latter does not. The distinction is a fine one, but is nonetheless real and is the foundation for the decision of Hoffman J in Comfort Hotels Ltd 1988 3AER53. Orders of the second kind do not necessarily require express provision in primary legislation. Until Section 5 of the Courts and Legal Services Act 1990, there was no such foundation for R.S.C.Order 38 rule 2A. The procedural rules of many tribunals contain similar provisions: see by way of example Rules 10(2)(s) and 13(i)(a) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 SI2004/1861, which provide for a costs sanction and/or the striking out of the whole or part of a claim or a response in default of compliance with an order for advance preparation and exchange of witness statements. The enabling provision (Section 7 of the Employment Tribunal Act 1996) does not expressly permit legal professional privilege or litigation privilege to be over-ridden by the rules. They are, nevertheless, lawful and effective.

[37]The Deputy District Judge’s order was of the first, not second, kind. No sanction was imposed in default of compliance. It was, therefore, either an unconditional order which infringed litigation privilege or legal professional privilege or both without the sanction of primary legislation, and so was unlawful; or it was an order, without sanction, and so amounted to no more than a request. I would reject the submission of Mr Tedd QC that the sanction of refusing to allow a defendant to call witnesses whose names, addresses and dates of birth he had not identified in advance, could lawfully be imposed under the current statutory scheme. I would not accept that CrPR3.5(2)(i) (which permits a court to “specify” the consequences of failing to comply with a direction) would permit such a drastic inroad into the rights of a defendant to defend himself against a criminal charge. That would require express legislative sanction. The imposition on a defendant of a requirement to give advance disclosure of the identity of some witnesses has, hitherto, been thought to require primary legislation: Section 6 A(2) Criminal Procedure and Investigations Act 1996 (evidence of alibi) and Section 20 CPIA1996(3) (expert evidence). I am inclined to think that the imposition of an effective sanction, such as a prohibition on relying on the evidence of a witness not previously identified, would require primary legislation.