“Taxation is a hybrid procedure; it can include situations which are more administrative or supervisory than adversarial; but there can be no doubt that on a taxation inter partes arising out of civil litigation the proceedings are essentially adversarial. One party is claiming money from another. The outcome of the proceedings is a quantified monetary liability of one party to another.”
“There are certain features of a common law trial which are fundamental to our system of justice (both criminal and civil). First, subject to certain established and limited exceptions, trials should be conducted and judgments given in public. The importance of the open justice principle has been emphasised many times ... The open justice principle is not a mere procedural rule. It is a fundamental common law principle. In Scott v Scott[1913] AC 417 , Lord Shaw of Dunfermline (p 476) criticised the decision of the lower court to hold a hearing in camera as constituting a ‘violation of that publicity in the administration of justice which is one of the surest guarantees of our liberties, and an attack upon the very foundations of public and private security.’ Viscount Haldane LC (p 438) said that any judge faced with a demand to depart from the general rule must treat the question ‘as one of principle, and as turning, not on convenience, but on necessity’.”
“It is a general principle of our constitutional law that justice is administered by the courts in public, and is therefore open to public scrutiny.”
“Since the principle of open justice is a constitutional principle to be found in the common law, it follows that it is for the courts to determine its ambit and its requirements, subject to any statutory provision. The courts therefore have an inherent jurisdiction to determine how the principle should be applied.”
“While the broad principle is that the Courts of this country must, as between parties, administer justice in public, this principle is subject to apparent exceptions, such as those to which I have referred. But the exceptions are themselves the outcome of a yet more fundamental principle that the chief object of Courts of justice must be to secure that justice is done. ... As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield. But the burden lies on those seeking to displace its application in the particular case to make out that the ordinary rule must as of necessity be superseded by this paramount consideration. The question is by no means one which, consistently with the spirit of our jurisprudence, can be dealt with by the judge as resting in his mere discretion as to what is expedient. The latter must treat it as one of principle, and as turning, not on convenience, but on necessity.”
“As has been stated on many occasions, court hearings should take place in public and should be freely reported unless justice cannot be done on that basis in the particular case, and in that event, the court should ensure that the restrictions on access and reporting are the minimum necessary to enable justice to be done in that case.”
“In this case, we took the view that we should order that there should be no reporting of the contents of the [Greek court] application notice, whether or not mentioned in court, without the permission of the court or the written agreement of both parties (or their solicitors). On that basis, we could see no objection to the hearing proceeding in open court, on the basis that counsel could be expected to be able to avoid revealing any private information in their oral submissions. If, for some reason it had been necessary to do so, counsel could have asked the court to sit in private temporarily; if counsel had accidentally revealed any private information orally, the court could have made an appropriate order preventing its reporting.”
“39.2 General rule – hearing to be in public (1) The general rule is that a hearing is to be in public. … (3) A hearing, or any part of it, may be in private if– (a) publicity would defeat the object of the hearing; (b) it involves matters relating to national security; (c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality; (d) a private hearing is necessary to protect the interests of any child or protected party; (e) it is a hearing of an application made without notice and it would be unjust to any respondent for there to be a public hearing; (f) it involves uncontentious matters arising in the administration of trusts or in the administration of a deceased person’s estate; or (g) the court considers this to be necessary, in the interests of justice.” (a) publicity would defeat the object of the hearing; (b) it involves matters relating to national security; (c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality; (d) a private hearing is necessary to protect the interests of any child or protected party; (e) it is a hearing of an application made without notice and it would be unjust to any respondent for there to be a public hearing; (f) it involves uncontentious matters arising in the administration of trusts or in the administration of a deceased person’s estate; or (g) the court considers this to be necessary, in the interests of justice.”
“The principle which runs through all [the cases] 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 is a fundamental human right long established by the common law. It is the necessary corollary of the right of any person to obtain skilled advice about the law. Such advice cannot be effectively obtained unless the client is able to put all the facts before the adviser without fear that they may afterwards be disclosed and used to his prejudice.”
“A client who sues his solicitor invites the court to adjudicate the dispute and thereby, in my judgment, waives privilege and confidence to the extent that is necessary to enable the court to do so fully and fairly in accordance with the law including the law of evidence. I suspect that at the fringes each case will depend on its own facts. Normally the waiver will extend to facts and documents material to the cause of action upon which the plaintiff sues and the defendant's proper defence to that cause of action. The bringing of a claim for negligence in relation to a particular retainer will normally be a waiver of privilege and confidence for facts and documents relating to that retainer, but not without more for those relating to other discrete retainers.”
“The waiver can only extend to matters which are relevant to an issue in the proceedings and, privilege apart, admissible in evidence. There is no waiver for a roving search into anything else in which the Solicitor or any other solicitor may have happened to have acted for the clients. But the waiver must go far enough, not merely to entitle the plaintiff to establish his cause of action, but to enable the defendant to establish a defence to the cause of action if he has one. Thus, it would extend to matters under earlier retainers, … which established that the experience of the client, was, to the knowledge of the solicitor, such that the solicitor was not in breach of duty as alleged.”
“…by bringing civil proceedings against his solicitor, a client impliedly waives privilege in respect of all matters which are relevant to the suit he pursues and, most particularly, where the disclosure of privileged matters is required to enable justice to be done. This is another way of expressing the view that May J expressed in his judgment in the passage to which Dillon LJ has referred.”
“A proper interpretation of the waiver in this case is, in my judgment, one that embraces not only the documents and advice arising from the [particular] transaction, but also documents or information otherwise subject to privilege which are relevant to the issues between the parties and which it would be unfair to exclude.”
“The true analysis of what the courts are doing in such cases of so-called implied waiver of privilege is, in my judgment, to prevent the unfairness which would arise if the plaintiff were entitled to exclude from the court's consideration evidence relevant to a defence by relying upon the privilege arising from the solicitor's duty of confidence. The client is thus precluded from both asserting that the solicitor has acted in breach of duty and thereby caused the client loss and, to make good that claim, opening up the confidential relationship between them and at the same time seeking to enforce against that same solicitor a duty of confidence arising from their professional relationship in circumstances where such enforcement would deprive the solicitor of the means of defending the claim. It is fundamental to this principle that the confidence which privilege would otherwise protect arises by reason of the same professional relationship between the parties to the litigation. The underlying unfairness which the principle aims to avoid arises because the claim is asserted and the professional relationship opened for investigation against the very party whose duty of confidence is the basis of the privilege. It is against the unfairness of both opening the relationship by asserting the claim and seeking to enforce the duty of confidence owed by the defendant that the principle is directed.”
“… as I have already explained, the foundation of the waiver is not merely that the assertion of privilege leads to the inaccessibility of evidence relevant to a defence. It is the inconsistency of the plaintiff on the one hand opening the professional relationship to the inspection of the court and on the other hand seeking to enforce confidentiality so as to exclude communications to which the professional relationship between the same parties has given rise.”
“When a client sues a solicitor who has formerly acted for him, complaining that the solicitor has acted negligently, he invites the court to adjudicate on questions directly arising from the confidential relationship which formerly subsisted between them. Since court proceedings are public, the client brings that formerly confidential relationship into the public domain. He thereby waives any right to claim the protection of legal professional privilege in relation to any communication between them so far as necessary for the just determination of his claim; or, putting the same proposition in different terms, he releases the solicitor to that extent from the obligation of confidence by which he was formerly bound. This is an implication of law, the rationale of which is plain. A party cannot deliberately subject a relationship to public scrutiny and at the same time seek to preserve its confidentiality. He cannot pick and choose, disclosing such incidents of the relationship as strengthen his claim for damages and concealing from forensic scrutiny such incidents as weaken it. He cannot attack his former solicitor and deny the solicitor the use of materials relevant to his defence. But, since the implied waiver applies to communications between client and solicitor, it will cover no communication to which the solicitor was not privy and so will disclose to the solicitor nothing of which he is not already aware.”
“Fairness is an important part of the reason why a solicitor who is sued cannot be required to respect the confidentiality of his relationship with the client who is suing him; but, save as between the client and the solicitor he is suing, fairness is not the touchstone by which it is determined whether a client has or has not impliedly waived his privilege.”
“It is clear that neither the Law Society nor the client of SBS is a party to the Policy. Accordingly Quinn can have no contractual claim to production of the privileged documents it seeks based on clause 6.2 a) 4) or any other provision of the Policy unless the client has consented either expressly or by implication from its claim against SBS. It follows that the refusal of the Law Society in the exercise of its public functions, to disclose the documents sought by Quinn can only be challenged by Quinn on public law grounds, namely that the Law Society is acting unlawfully in refusing to comply with Quinn's request. As I have pointed out, the request for production is a blanket request in respect of all documents but is only material in relation to privileged documents where privilege has not been waived by the client of SBS because no claim against SBS and by SBS under the Policy has been made. The Law Society claims to be not only entitled to withhold production of them but to be bound to withhold them to preserve client confidentiality in accordance with its primary concern to protect the interests of the former clients of SBS and in accordance with the Code of Conduct.”
“There is no issue in respect of files in respect of transactions where the client has made a claim against SBS which has been notified to Quinn. In such a case the Law Society takes the view that the making of the claim constitutes a waiver of client confidentiality and privilege and has allowed Quinn to have access to those files. In addition copies of all bank statements of SBS have been provided to Quinn. As to the remainder of the documents of SBS in the possession of the Law Society it appears to be common ground that they all contain information confidential to one or more former clients of SBS whose privilege has not been waived.”
“It is therefore clear that there is now a statutory requirement on a claimant for costs to disclose privileged documents to the court. Normally, where privilege exists it applies to protect disclosure not only to the opposing party, but also to the court. So the rule clearly makes inroads into that general protection. It follows that once a party puts forward privileged documents as part of his case for costs some measure of their privilege is temporarily and pro hac vice relaxed. In most cases, as Hobhouse J. observed in Pamplin's case[1985] 1 WLR 689 , 695, no problem would arise on taxation about privilege. However, when the problem does arise the taxing officer has the duty of being fair to both parties: on the one hand, to maintain privilege so far as possible and not disclose the contents of a privileged document to the paying party unnecessarily; on the other hand, he has to see that that party is treated fairly and given a proper opportunity to raise a bona fide challenge. The contents of documents will almost always be irrelevant to considerations of taxation which are more concerned with time taken, the length of documents, the frequency of correspondence and other aspects reflecting on costs.… There may be instances in which a taxing officer may need to disclose part, if not all, of the contents of a privileged document in striking the appropriate balance. He will no doubt use all his expertise and tact in seeking to avoid that situation wherever he can. I do not envisage it occurring, except very rarely.”
“Any disclosure of privileged documents which does have to be made in the exercise of the taxing officer's discretion would in my judgment be only for the purposes of the taxation. That it is possible to waive privilege for a specific purpose and in a specific context only is well illustrated by the decision of this court in British Coal Corporation v. Dennis Rye Ltd. (No. 2)[1988] 1 WLR 1113 . In that case documents which had been created for the purpose of civil proceedings were disclosed to the police for the purposes of criminal investigation. The question arose as to whether the waiver of privilege in favour of the police amounted to a waiver in favour of the defendant for the purposes of the civil proceedings. Neill L.J., giving the first judgment, said, at p. 1121. “Nevertheless it is clear that the plaintiff made the documents available for a limited purpose only, namely to assist in the conduct first of a criminal investigation and then of a criminal trial. This action of the plaintiff, looked at objectively as it must be, cannot be construed as a waiver of any rights available to them in the present civil action for the purpose of which the privilege exists.”
“It is possible to waive privilege for a specific purpose and in a specific context without waiving it for any other purpose or in any other context. Documents disclosed on taxation in the manner contemplated in Goldman are disclosed for the purposes of that taxation and, perhaps absent special circumstances, the privilege is only waived for the purpose for which the documents are disclosed. If Bourns had disclosed the documents after an order made by the taxing master under RSC, O. 62, r. 20(d), the reasoning of Taylor LJ in Goldman would have been decisive. The privilege attaching to the documents would only have been waived for the purpose of the taxation proceedings. Does the fact that no such order was made result in the privilege being waived generally? In my judgment the answer is ‘No’.”
“There is good reason to encourage voluntary disclosure of relevant documents in taxation proceedings. A party who claims payment may have to elect whether to pursue that claim in the light of knowledge that it might require disclosure of privileged documents. If he decides to pursue such a claim with the result that natural justice requires disclosure, he should not lose his right of confidentiality more than justice requires. Justice only requires that right to be lost for the taxation proceedings.”
“The society’s argument, put colloquially, is that privilege entitles one to refuse to let the cat out of the bag; once it is out of the bag, however, privilege cannot help to put it back. Their Lordships observe that this arises from the nature of the privilege; it has nothing to do with waiver. It does not follow that privilege is waived generally because a privileged document has been disclosed for a limited purpose only: see British Coal Corpn v Dennis Rye Ltd (No 2)[1988] 1 WLR 1113 and Bourns Inc v Raychem Corpn[1999] 3 All ER 154 . The question is not whether privilege has been waived, but whether it has been lost. It would be unfortunate if it were. It must often be in the interests of the administration of justice that a partial or limited waiver of privilege should be made by a party who would not contemplate anything which might cause privilege to be lost, and it would be most undesirable if the law could not accommodate it.”
“A lawyer must be able to give his client an unqualified assurance that, not only that what passes between them shall never be revealed without his consent in any circumstances, but that should he consent to disclosure for a limited purpose those limits will be respected….”
“[Counsel for the solicitors], basing himself on Lillicrap -v- Nalder [1993]1 WLR 94 C.A. argues that by reason of his entering a defence to the Fee Proceedings Mr Bonas thereby waived confidence and that Mr Brice thereafter became free to use against Mr Bonas material which otherwise would have been denied him under solicitor-and-client confidence and under the rules under which solicitors practice. I do not doubt that if the Fee Proceedings had been fought further Mr Brice would have been able to use otherwise confidential solicitor-and-client material in those proceedings. The reason would have been that without such an implied waiver justice would not have been capable of being done in that suit. But it would be quite disproportionate to achievement of that end to enlarge that limited form of implied waiver in such a way as to free Mr Brice to use the otherwise confidential material wherever he might choose, including in these proceedings.”
“When … documents or the material parts of them are read aloud in open court it is plain that the implied obligation binding on the party to whom compulsory disclosure had been made comes to an end, in the absence of any contrary order by the court. The same result must follow if counsel in open court draws the attention of the judge to a document which the judge then reads to himself. These are the simplest cases. The present appeal obliges the court to consider the application of the rule in less obvious cases, and in doing so to take account of changing forensic practice. For reasons which are very familiar, it is no longer the practice for counsel to read documents aloud in open court or to lead the judge, document by document, through the evidence. The practice is, instead, to invite the judge to familiarise himself with material out of court to which, in open court, economical reference, falling far short of verbatim citation, is made. In this new context, the important private rights of the litigant must command continuing respect. But so too must the no less important value that justice is administered in public and is the subject of proper public scrutiny.”
“It is significant that the judge's order was not made by consent; he held that the proceedings had come to trial for the purposes of Ord 62, App 2, r 3; and he felt able to certify SmithKline's particulars of objection as reasonable, a step he could not have taken had he not informed himself what the objections were and what was relied on in support of them. We do not regard this conclusion as infringing the private rights of Connaught; but we do think that any other decision would give recent procedural changes a very restrictive effect on the publicity properly attaching to the administration of justice and on SmithKline's rights underart 10 of the European Convention on Human Rights .”
“the starting point should be that practices adopted by the courts and parties to ensure the efficient resolution of litigation should not be allowed to adversely affect the ability of the public to know what is happening in the course of proceedings.”
“52. … If the transcripts had been read in open court they would have been in the public domain. If they were read by the judge, in or out of court, as part of his responsibility for determining what order should be made, they should be regarded as being in the public domain. This is subject to any circumstances of the particular case making it not in the interests of justice that this should be the position. 53. When documents are put before the court for the purpose of being read in evidence as here the onus is no longer on the person contending they have entered the public domain to show this has happened. The onus is on the person contesting this is the position to show that they did not enter the public domain because, for example, the judge did not in fact read them or because of the need to protect the ability of the court to do justice in a particular case. This is the only practical solution. The judge cannot be cross-examined as to what he has or has not read.”
“These proceedings, and the complaints being made by the Claimant about Dechert in relation to its fees, are accordingly so well documented in the press that it is vital that Dechert has the ability to clear its name of the allegations of gross and deliberate overcharging in a public court and that it is not dealt with by evidence and a judgment which are kept in private. Therefore, it is important to Dechert that these proceedings be heard in public.”