Q&As

What is the legal position if my client (husband in a matrimonial matter) has seen and wishes to provide me with a copy of legal advice given to his opponent (wife) by the wife’s own solicitor? Does it matter whether the wife and/or her solicitor is aware and agrees to me seeing the advice given to her by her own solicitor?

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Produced in partnership with Chris Bryden of 4 King’s Bench Walk
Published on LexisPSL on 30/11/2017

The following Practice Compliance Q&A produced in partnership with Chris Bryden of 4 King’s Bench Walk provides comprehensive and up to date legal information covering:

  • What is the legal position if my client (husband in a matrimonial matter) has seen and wishes to provide me with a copy of legal advice given to his opponent (wife) by the wife’s own solicitor? Does it matter whether the wife and/or her solicitor is aware and agrees to me seeing the advice given to her by her own solicitor?

As a general principle, legal advice from a solicitor to their client is subject to legal advice privilege. For such privilege to attach, the advice (whether written or oral) must have been given by a lawyer, as here, and must amount to advice given in a relevant legal context. As a result a party cannot be required to disclose such advice; it is ‘secure against the possibility of any scrutiny from others’: Three Rivers District Council v The Governor and Company of the Bank of England. Further, legal advice will be confidential. The case of Tchenguiz v Imerman comprehensively debunked the previous practice of ‘self-help’ in family proceedings (often known as the Hildebrand rules) and made clear that it is not open to a party to obtain and then rely upon information which has been unlawfully obtained. The starting point therefore is that where a client has obtained legal advice given to the other party it is not appropriate for him to provide it (or relay its contents) to his legal advisor.

However there may be circumstances in which the advice can be seen. Privilege can be waived in a number of ways, including by disclosure, express or limited waiver, by placing the material before a cou

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