Scottish court reasserts legal professional privilege principles in rare case

In a rare Scottish case on privilege (23-page / 606KB PDF), the court upheld the principles of legal professional privilege (LPP). The judgment underlines the similarities between the two jurisdictions on this fundamental right and is a positive development for clients and law firms operating in both Scotland and England and Wales, according to legal experts at Pinsent Masons.

The matter concerns a third-party services complaint relating to work undertaken by two solicitors of a Scottish law firm during divorce proceedings. The complainer is the wife of the client whom the solicitors had acted for. The issue in dispute was whether the SLCC is entitled, under the 2007 Legal Profession and Legal Aid (Scotland) Act, to apply for the production and delivery of documents which are covered by LPP.

The Law Society of Scotland and the Faculty of Advocates both intervened, supporting the solicitors who were the respondents in this case, and maintaining that they are prevented from releasing the files by LPP.

In its judgment, the Inner House referred to the leading ‘Three Rivers’ case in the Court of Appeal of England and Wales, and set out the distinction between the duty of confidentiality and LPP. Whilst the duty of confidentiality may be overcome in the public interest, communications covered by LPP cannot be recovered by the SLCC to investigate a third-party complaint unless the client of the solicitor gives permission.

“The Scottish court reasserts the principles of LPP relying largely on cases from England and Wales. This underlines the similarities between the two jurisdictions on this,” said Pinsent Masons’ litigation and regulatory expert Bruce Craig. “Scottish cases on LPP are rare so they attract considerable attention when they do appear before the courts here. Any divergence with England and Wales would be particularly difficult for clients with cross-border practices – and their lawyers – so this confirmation is welcome.”

The court also clarified several important points concerning LPP in Scotland. It made clear that LPP may not be overcome, even in the public interest, except within strictly defined circumstances. These are waiver, whether express or implied, by the person entitled to assert the privilege; recognised exceptions, for example where the material is being used to shield criminal or fraudulent activity; and where the privilege is overridden by statute.

In this case, it was clear that there was no waiver nor was there any express override by the statute. So the two issues the court had to address were whether the particular circumstances involved a recognised exception - which the court described as the “no infringement” argument - or whether an override arose by necessary implication from the terms of the 2007 Act.

In its conclusion, the court rejected SLCC’s suggestion that a “no infringement” exception applied to LPP. In doing so, the Scottish court followed a 2020 decision by the Court of Appeal, in which it found that high street retailer Sports Direct did not have to hand over documents requested by audit regulator the Financial Reporting Council.

The court also found that terms of the 2007 Act did not give rise to a statutory override by necessary implication. Lady Dorrian, giving the opinion of the court, said: “An implication that LPP is overridden can only arise if it follows necessarily from the express terms of the statute construed according to its context and purpose. The implication must be demonstrably necessary for at least an important aspect of the legislation to achieve its purpose. It is not enough that it might be convenient; sensible; or reasonable… Privilege may successfully be asserted unless the only available inference is that Parliament must have intended to set it aside."

“The judgment also confirms that in Scotland LPP belongs to a client, who can assert or waive it as they see fit,” added Fiona Cameron, a litigation and regulatory expert of Pinsent Masons.