LM v London Borough of Lewisham

Posted on 09/10/2009 · Posted in Expert Witness

Legal professional privilege, litigation privilege

The Claimant was the mother of a girl with special educational needs. The Defendant named a secondary school for her to attend. The Claimant appealed against the naming of the particular school. The First-tier Tribunal asked that specialist reports be produced and that those reports be attached to letters of instruction with a list of all the documents seen by the experts. It was contended that this breached legal advice privilege.

The Upper Tribunal concluded that the First-tier Tribunal did not have the power to make directions infringing legal advice privilege. It was suggested that litigation privilege applied also. It held that an expert report (and the documents upon which the expert relied) is not discloseable, but its disclosure could be made a condition of relying on it.

In the Upper Tribunal’s view, the First-tier Tribunal had not asked the parties to disclose anything other than that on which they would later rely. Disclosure would entail waiver of litigation privilege, although material protected by legal advice privilege would still be protected.

Link: LM v London Borough of Lewisham [2009] UKUT 204 (AAC)

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