Professions

Investigation of complaint against solicitor - statutory power to requisition documents - refusal on ground of legal professional privilege upheld

B and others v Auckland District Law Society and another: PC (Lord Hope of Craighead, Lord Hobhouse of Woodborough, Lord Millett, Lord Scott of Foscote and Lord Walker of Gestingthorpe): 19 May 2003

A district law society in New Zealand, while investigating a complaint against a law firm, sought the disclosure of documents in its possession under section 101(3) of the Law Practitioners Act 1982.

Some documents had been handed over pursuant to an arrangement under which their use was to be limited and any privilege therein not to be waived.

The law society argued that any privilege was nevertheless overridden by the statute.

The judge's decision that the statute did not override the privilege was reversed by the Court of Appeal of New Zealand.

The firm appealed to the Privy Council.

Jonathan Sumption QC with Richard Craddock QC and Brian Latimour (both of the New Zealand Bar) (instructed by DLA) for the firm; Rodney Harrison QC and Grant Illingworth (both of the New Zealand Bar) (instructed by Cruickshanks) for the Auckland District Law Society.

Held, allowing the appeal, that the privilege was fundamental to the administration of justice and could not be abrogated by statute except through express words or necessary implication, neither of which was to be found in the 1982 Act; that where a privileged document was disclosed for a limited purpose it did not follow that privilege was waived generally; and that whether the firm's claim to recover the documents already disclosed and to prevent their further use by the society was based on a common law or equitable right, the policy considerations which gave rise to the privilege precluded the court from conducting a balancing exercise based on some counter-vailing public interest (WLR).