Part 36 offer to settle action apparently disclosed inadvertently to judge - no serious procedural irregularity - fairness and justice not requiring rehearing before different judge

Garratt v Saxby: CA (Lords Justice Ward, Buxton and Dyson): 18 February 2004

The claimant was injured in a traffic accident.

His claim for damages was heard by a judge in the county court.

At the hearing of the claimant's appeal before a High Court judge, his solicitors inadvertently included in their appeal bundle references to the defendant's part 36 offer which had been tendered before the county court hearing.

Without making any reference to the offer, the appeal judge upheld the claimant's appeal subject to a finding of 40% contributory negligence.

The defendant appealed.

Brian D Cummins (instructed by the Solicitor, Royal & SunAlliance Insurance, Manchester) for the defendant; Tim Horlock QC (instructed by Alyson France & Co, Heswall) for the claimant.

Held, dismissing the appeal, that, since CPR rule 52.12(1) prohibited in mandatory terms disclosure to any judge hearing an appeal of a party's part 36 offer or payment until all issues had been determined, had the judge seen reference to the defendant's offer in the appeal bundle doubtless she would have informed the parties; that thus there was not shown to be a 'serious procedural' irregularity under rule 52.1 (3); and that the interests of fairness and justice did not require the appeal to be reheard before a different judge.

Legal advice privilege - lawyers assisting and advising client on presentation of evidence to inquiry to avoid criticism of client - communications not privileged

Three Rivers District Council and Others v Governor and Company of the Bank of England: CA (Lord Phillips of Worth Matravers, Master of the Rolls, and Lords Justice Longmore and Thomas): 1 March 2004

Following the collapse of a bank (BCCI), its creditors and liquidator claimed damages against the Bank of England for alleged misfeasance in public office in relation to its supervision of BCCI.

The claimants sought disclosure from the Bank of England of communications between it and its legal advisers during the course of the private, non-statutory inquiry which had been held into its supervision of BCCI.

The Bank of England claimed legal advice privilege.

The judge [2003] EWHC 2565 (Comm) found that the dominant role of the Bank's solicitors was to advise on the preparation and presentation of evidence to the inquiry in order to show the Bank and its officials in the best possible light and he made a declaration that the Bank was entitled to claim legal advice privilege only in respect of solicitor/client communications exchanged for the purpose of seeking advice as to the Bank's rights and obligations, but not in respect of those seeking or obtaining advice or assistance on the presentation of materials and evidence to the inquiry.

The Bank appealed.

Bankim Thanki QC and Ben Valentin (instructed by Freshfields Bruckhaus Deringer) for the Bank; Gordon Pollock QC, Barry Isaacs and Nathan Pillow (instructed by Lovells) for the claimants.

Held, dismissing the appeal, that broad protection would be given to communications between solicitor and client in the course of a solicitor/client relationship formed primarily to obtain advice or assistance in relation to legal rights and liabilities, but the mere fact that work done was within the ordinary business of a solicitor did not necessarily mean that it attracted legal advice privilege; that on the judge's findings, the advice sought was primarily in relation to the presentation of evidence to the inquiry rather than in relation to the Bank's legal rights and obligations and the mere fact that, in the course of that relationship, the legal advisers might have given some advice as to the Bank's legal rights and obligations, did not clothe all communications between them in the course of that relationship with privilege; that the representation of witnesses at an inquiry fell within the ordinary business of a solicitor but, in the circumstances (whatever the position in relation to presentational advice given to an individual witness concerned to protect his reputation at such an inquiry), the communications between the legal advisers and the Bank as to advice and assistance concerning the presentation of material and evidence to the inquiry should not attract privilege.