COUNTIES MANUKAU DISTRICT HEALTH BOARD V THE LEGAL SERVICES AGENCY AND ANOR HC AK CIV 2005-404-2989

COUNTIES MANUKAU DISTRICT HEALTH BOARD V THE LEGAL SERVICES AGENCY AND ANOR HC AK CIV 2005-404-2989 15 September 2005IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2005-404-2989BETWEEN COUNTIES MANUKAU DISTRICT HEALTH BOARD Applicant AND THE LEGAL SERVICES AGENCY First Respondent AND PAUL HOLDEN ELLIS Second Respondent Hearing: 7 September 2005 Appearances: A M Adams and M K Thomas for Applicant G D S Taylor and R M Taylor for First Respondent A C M Fisher for Second Respondent Judgment: 15 September 2005 at 4.30 pmJUDGMENT OF LANG J [re application for order setting aside or modifying claim to privilege in respect of documents]In accordance with R 540(4) of the High Court Rules I direct that the Registrar endorse this judgment with the delivery time of 4:30pm on the 15th day of ..September.2005.Solicitors: Meredith Connell, P O Box 2213, Auckland Bartlett Partners, P O Box 10852, Wellington Brookfields, P O Box 240, Auckland Copy to: G D S Taylor, P O Box 5294 Wellington A C M Fisher, P O Box 1752 Shortland Street, Auckland[1] This application raises important issues regarding the extent to which material provided to the Legal Services Agency by an applicant for legal aid may be withheld from inspection in judicial review proceedings brought to challenge the grant of aid. [2] The proceeding itself arises out of in a tragic series of events involving the second respondent, Mr Paul Ellis. He is now a special patient in the Mason Clinic in Auckland, and is liable to be detained there indefinitely. His present committal follows an incident in October 2001, when he began to exhibit behaviour that sufficiently concerned his family that they took him to the Tiaho Mai Mental Health Unit at Middlemore Hospital. The first respondent, the Counties Manukau District Health Board ("the Board"), is responsible for the administration and operation of that facility. [3] Mr Ellis was discharged from the unit the following day, in circumstances that are now strongly criticised by Mr Ellis's family. Two weeks later Mr Ellis attacked his father with a baseball bat, thereby causing him injuries that ultimately led to his death. Mr Ellis was charged with murdering his father, but was found not guilty on the grounds of insanity. His committal as a special patient followed that verdict. [4] Mr Ellis and his family feel badly let down by the manner in which the Board discharged its responsibilities in dealing with Mr Ellis. They say that, had he been properly treated when he was first committed to the care of the Board, he would be back in the community now and his father would still be alive. [5] In December 2004 Mr Ellis, through his litigation guardian, issued proceedings against the Board in this Court. He seeks damages against the Board in negligence for the manner in which he was treated at, and discharged from, the Tiaho Mai Mental Health Unit.[6] Mr Ellis has received a grant of legal aid from the Legal Services Agency to enable him to prosecute that proceeding. In this proceeding the Board is seeking judicial review of the Agency's decision to grant Mr Ellis legal aid.The present application[7] An issue has now arisen because the Agency objects to producing 46 documents that it has listed in its affidavit of documents. It contends that those documents are subject to legal professional privilege and / or litigation privilege. It also contends that the documents should be immune from production for reasons of public policy. Mr Ellis supports the Agency in relation to the stance it has adopted in relation to the present application. [8] Although the application is framed as an application for an order setting aside modifying the Agency's claim for privilege, it is in reality an application for an order that the Agency be required to produce the documents that it has withheld to date. [9] At the commencement of the hearing Ms Adams confirmed that the Board did not seek production of any documents that contained:Information directly related to the proposed negligence action, in particular any evaluative material provided by counsel for Mr Ellis to the agency as to the proposed negligence action, including the grounds for proceeding with the same, the strategy for the same and the prospects of success of the same.[10] In addition, Ms Adams confirmed that the Board did not seek access to reporting letters sent by Mr Ellis's counsel to the Agency, to any invoices rendered by Mr Ellis's counsel to the Agency and to material relating to the quantum of aid granted to Mr Ellis. [11] As a result of this concession I was able to make rulings during the hearing in relation to all but seven of the documents in issue. Both counsel confirmed that I was not required to give reasons for my rulings in relation to those 39 documents. I am therefore now required to determine the application so far as it relates to the remaining seven documents.Preliminary matter[12] Before considering the individual documents, it is necessary to briefly consider a preliminary matter. This arises from the Agency's submission that the Court should not require documents to be produced in circumstances where the person seeking to obtain access to those documents is the opposing party in a civil proceeding ("the substantive proceeding") brought by the legally aided person. The Agency submits that it would be wrong for the Court to allow such a party to use a challenge to the grant of legal aid in order to obtain a collateral advantage in the substantive proceeding. [13] I accept that it would be wrong for the Court to allow judicial review proceedings challenging a grant of legal aid to enable the opposing party to obtain a collateral, or improper, advantage in a civil proceeding brought by the legally aided person. I accept also that such a challenge has the potential to be used by an unscrupulous litigant to place pressure on a legally aided adversary in a manner that could not occur if that person was not in receipt of legal aid. [14] Such pressure can be exerted in many different ways. It can take the direct and obvious form of enabling the applicant for judicial review to gain access to material that will assist it to defend the substantive proceeding. It can also, however, place pressure on the legally aided party in other subtle, yet equally effective, ways. [15] A challenge to a grant of aid will necessarily divert the energy of the legally aided party and his or her advisers away from the substantive proceeding. It is also likely to lead to greater delay and increased expense in having the substantive proceeding determined. All of these matters can subject the legally aided party to greater stress and anxiety than would be the case if that party was not in receipt of legal aid. It may therefore cause the legally aided party to withdraw the substantive proceeding or to settle on terms advantageous to the other party. [16] That said, however, there is little doubt that the opponent of a legally aided litigant has the necessary standing to bring an application for judicial review to challenge a grant of aid. This arises from the exposure of the party that is not inreceipt of legal aid to loss of the ability to obtain an award of costs from the legally aided litigant in the event that the legally aided party does not succeed at trial. [17] This principle is reflected in the fact that the Agency does not challenge the standing of the Board in this proceeding to seek judicial review of its decision to grant aid to Mr Ellis. It also reflects the conclusion reached in several Australian authorities and in the recent judgment of Gendall J in British American Tobacco (New Zealand) Limited v Legal Services Agency (2005) 17 PRNZ 504 (at pp509- 510). [18] I therefore proceed on the basis that the Board has the necessary standing to bring its claim in this proceeding and that, provided it is acting bona fide and not to obtain a collateral advantage in the substantive proceeding, it cannot be criticised for doing so. [19] I now consider the individual documents that were not the subject of rulings during the hearing.Documents 1, 2/1, and 63 – applications for legal aid[20] The Agency and Mr Ellis object to the production of these documents on two grounds. [21] First, they contend that the applications were provided on a confidential basis and that it is not in the public interest for them to be produced. In essence, they say that it is essential to the integrity of the legal aid regime that applicants for legal aid know that any information supplied to the Agency in support of an application for legal aid will remain confidential to the Agency. In particular, they contend that applicants need to know that such information will not be made available to their opponents in the substantive proceedings in respect of which aid is sought. [22] In addition, the respondents contend that the documents are subject to legal professional privilege or litigation privilege. They say that the documents were produced by Mr Ellis and his legal advisers from material obtained as a result ofdiscussions between them, and that they were also produced for the broad purpose of advancing the litigation brought by Mr Ellis against the Board.The claim based on public interest immunity[23] The Agency argues that there is a clear public interest in withholding the production of applications for legal aid. It points out that applicants provide such material to the Agency on a confidential basis, and for the sole purpose of enabling them to obtain legal assistance. The Agency is concerned that, if it is required to hand over material of the type that is now sought by the Board, that material will be used by the opponents of legally aided parties to defend the substantive proceedings brought against them by those parties. Legally aided parties will therefore be disadvantaged in the prosecution of their claims by the fact that they are in receipt of aid. [24] The disclosure of such information will also have the wider effect, the Agency says, of restricting the free and candid flow of information between applicants for legal aid and the Agency. It is likely to cause applicants for legal aid to withhold information from the Agency that they might otherwise provide. [25] I deal first with the issue of confidentiality. [26] Each of the applications expressly records that Mr Ellis had provided the information in the application form "on a confidential basis for the special purpose of obtaining legal assistance" in the proceedings for which aid was sought. I also accept that an applicant for legal aid would generally expect that the Agency would regard the information on application forms as being confidential, and that the Agency would not generally divulge it to third parties. [27] However, the fact that relevant documents may have been provided to a party to litigation on a confidential basis is unlikely to be sufficient to justify the documents being withheld from production unless other factors are present. The Court also has a wide range of powers available to it to ensure that the range of persons to whom such documents are to be disclosed is kept as narrow as possible.It regularly, for example, makes orders that documents are only to be disclosed in the first instance to opposing counsel, or to opposing counsel and experts instructed for the other party. [28] The real issue in the present case is whether there is an added factor, namely that of public interest immunity from production. The argument for the respondents on this point is based on well-known authorities such as Conway v Rimmer [1968] AC 910 and D v National Society for the Prevention of Cruelty to Children [1978] AC 171. Those cases demonstrate that in certain circumstances relevant documents may be withheld from inspection when matters of public interest require that that should occur. [29] In Conway v Rimmer the House of Lords held that production of documents would not be ordered if the risk of possible injury to the nation or public service was such that no interest should be allowed to prevail over it. In D v NSPCC the immunity was extended to prevent the names of police informers from being disclosed, notwithstanding the fact that the immunity was sought not by the police but by the NSPCC. [30] In the present case the Board accepts that some of the material that is contained in the application forms should be withheld from inspection. Included in this category are details regarding the amount of aid sought and any comments regarding legal issues likely to arise out of the claim against the Board. [31] This concession is broadly in line with observations made by William Young J in Legal Services Agency v Attorney-General [2002] 1 NZLR 842. In that case the police had seized from the Legal Services Agency several applications for criminal legal aid that had originally been lodged with the Registrar of the Court by defendants in a criminal trial. The Agency opposed the police having access to, or being able to use, the documents. It argued that the applications for legal aid were necessarily covered by legal privilege.[32] William Young J held (at p853) that legal aid applications are not automatically to be regarded as subject to legal professional privilege. In reaching that conclusion he said:This leaves open, however, whether some material held by a legal aid body (including perhaps evaluative material included on legal aid applications themselves) may be covered by legal professional privilege. The scheme of the legal aid system is such that there are occasions when lawyers for legally aided persons (or applicants for legal aid) are required to disclose evaluative material to legal aid authorities. Once legal aid is granted, there is a sense in which the relevant legal aid authority can be regarded (very broadly) as being a client of the lawyer acting for the legally aided person. Communications between lawyers and legal aid authorities will often be analogous to communications between a lawyer and a privately funded client. I understood Ms Crutchley for the Attorney-General to accept that information of the type which I have described would be subject to legal professional privilege and I agree that this is likely to be so. So I would not wish for it to be thought that my conclusions as to the status of financial information made available as part of legal aid applications to the Registrar of a Court means that legal professional privilege arguments are not available in relation to other information (particularly of an evaluative nature) made available to a legal aid authority.[33] In the present case, and with the two exceptions to which I have referred, the Board contends that it should be entitled to inspect all the material contained in the three applications for legal aid that were submitted to the Agency on behalf of Mr Ellis. It does not accept that that material is subject to the public interest immunity for which the respondents contend. [34] In particular, the Board submits that it should be entitled to inspect any financial information provided by Mr Ellis in support of his application for legal aid. It argues that this information is relevant to issues arising out of the fact that, when Mr Ellis was granted legal aid in May 2003, the Legal Aid Review Panel reversed an initial decision by the Agency in February 2003 to decline Mr Ellis's application. The Board wishes to explore the process by which the Panel came to reverse the Agency's initial decision. [35] The Board's interest in this issue has arisen as a result of material it obtained through discovery in this proceeding. It has now obtained access to a Decision Sheet relating to the Agency's initial decision to decline aid. This contains reference to the fact that "the application shows that the applicant has a calculated contribution of$145,000". The Decision Sheet goes on to state that "this alone disentitles [Mr Ellis] to aid". The Board says that this issue obviously formed an integral part of the Agency's initial decision to decline aid, and that it is entitled to explore the reasons underlying the reversal of that decision. It therefore says that it is entitled to have access to the financial information provided by Mr Ellis in the original application. [36] The statement of claim as presently framed does not, directly at least, advert to the issue of Mr Ellis's eligibility for legal aid in terms of the financial criteria set out in the Act. Nevertheless, the Agency has properly conceded that the applications are relevant by including them in its affidavit of documents. It would also be a simple matter for the Board to amend its claim to include a specific ground for review based on an alleged failure by the Agency to take into account the fact that Mr Ellis was not eligible for a grant of aid by virtue of his financial circumstances. I therefore propose to deal with this issue on the basis that the material contained in the three applications, and in particular the financial information contained therein, is relevant to the Board's claim in this proceeding. [37] The basic premise upon which the Agency bases its argument is that production of the applications is contrary or adverse to the public interest because it is likely to significantly diminish candid communications and disclosure of information by applicants for legal aid. [38] Reliance on the premise assumes that applicants for legal aid are likely to be more guarded in disclosing information to the Agency if they know that the information that they provide in their applications may potentially be available for inspection in the substantive proceedings for which aid is sought. [39] I am not sure, however, that this assumption is necessarily correct. Disclosure of an application for legal aid could never be sought in the substantive proceeding for which aid is sought. It could only be sought in the context of judicial review proceedings instituted to challenge the grant of aid. At this stage at least, such proceedings are extremely rare.[40] In the British American Tobacco case Gendall J made reference (at p509) to the Agency's submission that that case represented the first occasion on which an opponent of a legally aided person had sought to challenge a grant of aid by way of judicial review. I therefore do not consider that the prospect of disclosure is likely to loom large in the minds of the vast majority of applicants for legal aid. [41] Secondly, even if applicants turn their minds to that possibility, it does not necessarily follow that they will be more guarded or selective in supplying information to the Agency. It seems to me to be far more likely that applicants for legal aid will be more candid in providing information if they apprehend the possibility that that information may be open to scrutiny not only by the Agency but also by their adversaries. [42] Moreover, there may not be a great deal of scope for applicants to be other than completely frank in relation to the information that they provide in their applications for aid. In particular, it would seem virtually impossible for an applicant to provide misleading or equivocal answers in relation to the financial information that must be provided. The application form sets out the information that must be divulged in a simple and straightforward manner. On my reading of the form there appears to be very little room for applicants to equivocate in relation to the information that they provide. The Agency's concern may therefore be more imaginary than real. [43] Finally, in Legal Services Agency v Attorney-General (supra) William Young J considered policy issues relevant to the determination of whether or not legal professional privilege applied to the applications for criminal legal aid in issue in that case. In doing so he referred (at p 852) to the principle that legally aided persons should be neither advantaged nor disadvantaged by the fact that they were in receipt of aid. He then said (at para [46]):If two of the present accused had, instead of seeking for legal aid, sought financial assistance from a bank to cover their defence costs, they may well have been required to make available to the bank details as to their financial circumstances. I think it is perfectly clear that letters referring to their financial circumstances would not have been protected by legal professional privilege, even though, in a broad sense, they could be said to relate to the litigation. Although such letters (and associated financial disclosure) wouldnot be absolutely analogous to the applications for legal aid now in issue they are sufficiently analogous for it to be incongruous (to my mind) for applications for legal aid to be privileged while equivalent private sector applications for financial assistance would not be so privileged.[44] Although William Young J was dealing with the issue of legal privilege, I consider that the matters to which he referred in the above passage are also relevant to a claim that the Agency should be permitted to withhold documents from production on the ground of public interest immunity. Mr Ellis could not have resisted the production of documents based on that ground if he had obtained funding for his claim in the private sector and an argument (based, for example on champerty and maintenance) had arisen regarding that funding. It seems incongruous that such an argument can now be raised merely because his funding has come from the Agency rather than from the private sector. [45] These factors persuade me that the argument advanced by the respondents is not sufficient to warrant the three legal aid application forms being immune from production on public interest grounds.The claims for privilege[46] The respondents submitted that the documents were compiled as a result of discussions between Mr Ellis and his legal advisers, and that they were therefore covered by legal professional privilege. They also submitted that the documents were created in the course of obtaining funding for the substantive proceeding, so that they were therefore subject to litigation privilege as well. [47] This issue was at the heart of the judgment of William Young J in the Legal Services Agency v Attorney-General case. As he noted (at p 846), legal professional privilege is usually expressed as encompassing two distinct and separate concepts or rules. The first is that communications between lawyer and client are privileged, regardless of whether they are made in a litigation context. The second rule is that communications between the client or lawyer and third parties may also be privileged if they are made for the purposes of a particular proceeding.(i) Legal professional privilege[48] In the Legal Services Agency v Attorney-General case the legal aid applications were filled out by the applicants and handed to a Registrar of the Court. Solicitors were not involved in the process. As a result, the applications could only be covered by privilege if the communications between the applicants and the Registrar could be viewed as being analogous to those between solicitor and client. [49] There is an obvious factual distinction in the present case, because in the present case there may have been some input by a solicitor or barrister into the completion of the applications for legal aid. The evidence does not, however, reveal the extent of that input. In the end, the distinction may not be material. The fact remains that the application forms do not amount to communications between Mr Ellis and his legal advisers. They are communications between Mr Ellis (and / or his legal advisers) on the one hand and the Agency on the other. As in the case before William Young J, the extent to which the applications may be privileged depends on whether communications between Mr Ellis (and / or his legal advisers) and the Board are analogous to communications between solicitor and client. [50] William Young J noted (at p 846) that there was no provision in the Legal Services Act 1991 indicating that an applicant for legal aid was, vis-à-vis the Court or the Agency, to be regarded as being in a solicitor/client relationship. Similarly, there was no express provision in the Act imposing conditions of secrecy on the Agency in relation to applications for legal aid. As a result, William Young J concluded that the Act did not cloak communications with the Agency with legal professional privilege or statutory secrecy provisions. He also held that overseas authorities either supported disclosure being made or were distinguishable. This led him to conclude that, with the possible exception of evaluative material, the information in the application forms was not covered by legal privilege. [51] Although this case is concerned with the provisions of the Legal Services Act 2000, there is nothing in the present legislation to lead to a different conclusion being reached in this case. There is nothing in the scheme of the present legislation to suggest that communications with the Agency are subject to legal privilege or secrecy requirements.[52] In the present case the application forms in issue are identical standard form documents. They contain several sections that Mr Ellis was required to complete. These included personal details, marital status, dependants, legal matters and a financial statement. On the back page of the form is a section headed "Consent, acknowledgement and confirmation by applicant", and a section headed "Lead Provider to complete". [53] The Board accepts that it should not be given access to the information given by the Lead Provider or that contained in the section relating to legal matters. It says, however, that legal privilege cannot apply to any of the other information provided by Mr Ellis in the forms. [54] Having perused the forms, I have reached the conclusion that the material sought by the Board is straightforward factual information and does not contain any evaluative element. Adopting the reasoning used by William Young J, I do not consider that legal professional privilege attaches to it.(ii) Litigation privilege – the third party communication rule[55] In considering this form of privilege William Young J adopted (at p 847) the following passage from 35 Halsbury's Laws of England, 4th ed, vol 13, para 78:78. Communications with non-professional agent, employee or third party. Communications between a party and a non-professional agent or employee or third party are only privileged if they are made both (1) in answer to inquiries made by the party as the agent for or at the request or suggestion of his solicitor, or without any such request, but for the purpose of being laid before a solicitor or counsel for the purpose of obtaining his advice or of enabling him to prosecute or defend an action, or prepare a brief; and (2) for the purposes of litigation existing or in contemplation at the time. Both these conditions must be fulfilled in order that privilege may exist.[56] William Young J also referred (at p 851) to the following passage from the judgment of Cooke J in Guardian Royal Exchange Assurance of New Zealand Limited v Stuart:For these reasons I would propose as the New Zealand rule that, when litigation is in progress or reasonably apprehended, a report or otherdocument obtained by a party or his legal adviser should be privileged from inspection or production in evidence if the dominant purpose of its preparation is to enable the legal adviser to conduct or advise regarding the litigation.[57] Similarly, in Dinsdale v Commissioner of Inland Revenue (1997) 11 PRNZ 325 Blanchard J said (at p 326):This appeal concerns the type of legal professional privilege often called 'litigation privilege': the privilege which applies to communications between a legal professional adviser and a third party and between a client and a third party, made with a view to obtaining information to be submitted to a legal professional adviser. It protects the process of gathering evidence for consideration by a lawyer acting for a party in civil or criminal litigation or threatened with such litigation.[58] This form of privilege obviously has particular application in the context of communications between lawyer or client and third parties undertaken for the purpose of gathering of evidence for possible use at trial. William Young J held (at p 852) that an application for legal aid did "not fit easily within the third party communication rule formulated in traditional terms". [59] I have reached the same conclusion in this case. The applications for legal aid were not created, except in the very broadest sense, in the course of advancing the substantive litigation. Although they were completed and filled in to enable Mr Ellis to obtain funding for that litigation, they have no relevance at all to the issues raised in it. Neither were they created enable Mr Ellis to obtain legal advice or to prepare a brief. [60] I consider that it would unduly stretch the traditional boundaries of the rule to extend the ambit of litigation privilege to cover documents and communications that have no direct relevance to legal advice sought, or information gathered, for the purpose of advancing the substantive proceeding. [61] For these reasons I am satisfied that none of the grounds advanced by the respondents can succeed in relation to the applications for legal aid.[62] However, in order to give effect to the concession made by the Board, the information contained in each application under the headings "Legal Matters" and "Lead Provider to Complete" should be excised.Document 2/5 - Application for Review to Legal Aid Review PanelThis document was sent to the Agency by Mr Ellis's counsel, Ms Fisher, after the Agency initially declined to grant Mr Ellis aid. The Agency had evidently given five separate reasons for declining aid, each of which is addressed in Ms Fisher's application for review. [63] Given that this proceeding is essentially concerned with the process adopted by the Agency in granting Mr Ellis aid, the document is obviously of considerable relevance. It no doubt forms part of the material that the Review panel took into account in deciding to grant Mr Ellis aid. [64] The respondents contend, however, that the application is protected by legal professional privilege because it was compiled as a result of discussions between herself and her client. They also say that it is subject to litigation privilege. [65] Again, however, the document is not a communication between Ms Fisher and her client. It is a communication between Ms Fisher and the Agency. As a result, privilege could only attach to the document if it can be shown to have been created in circumstances where the Agency could broadly be regarded as being Ms Fisher's client. [66] The very nature of the document demonstrates that it cannot come within this category. It was created in the aftermath of the initial decision to decline aid. At that stage, therefore, Mr Ellis was not in receipt of aid. He (and Ms Fisher) were in an arms length third party relationship with the Board at that time, with the primary purpose of the application being to persuade the Review Panel that it should reverse the Agency's initial decision. [67] For these reasons the application does not attract legal professional privilege.[68] I have also reached the same conclusion in relation to the claim for privilege based on litigation privilege, or the so-called third party communication rule. My reasoning for this conclusion is the same as that in relation to the applications for legal aid. [69] The application for review was not produced for the purposes of the substantive proceeding in which Mr Ellis is the plaintiff. Rather, it is a continuation of the effort to obtain funding that commenced with the filing of the initial application for aid. [70] I am therefore satisfied that, to some extent at least, the document should be produced for inspection. I consider that paras 1 to 6 of the application do not breach any form of professional privilege. They do not amount to evaluative material that would be immune from production under the principles referred to by William Young J. They also disclose some of the matters that the Review Panel was asked to take into account in re-considering Mr Ellis's application for legal aid. [71] The matters contained in paras 7 to 18 of the application are, however, in a different category. They fall squarely within the class of material that the Board accepts should not be disclosed. They reveal, or at least indicate, the strategy to be adopted in presenting Mr Ellis's case, and also relate directly to Ms Fisher's estimate of his prospects of success. Those paragraphs (but not the headings) should therefore be excised. The headings should remain intact, because they indicate the range of matters that the Agency was asked to consider. [72] I do not accept that the same considerations apply in respect of paragraphs 19 and 20. They deal with issues that are entirely unrelated to the proceeding brought by Mr Ellis. [73] Paragraph 19 relates solely to a factor apparently taken into account by the Agency in originally declining to grant Mr Ellis aid. It amounts substantially in my view to a submission by Ms Fisher to the Review Panel, and as such is relevant to the Agency's decision making process that will be the subject of this proceeding.[74] Paragraph 20 is no more than a summary of the extent to which Ms Fisher was asking the Agency for aid on Mr Ellis's behalf. That, too, is a matter that relates to process rather than to the substantive proceeding brought by Mr Ellis. It, too, should also be available for inspection by the Board.Document 83 – Letter from Ms Fisher to the Agency dated 11 February 2005[75] This letter was obviously written by Ms Fisher in response to specific queries raised by the Agency. As such, it is not a communication between herself and her client, and could only attract legal professional privilege in the limited circumstances referred to above. [76] Paragraphs 1 to 5 relate to a variety of issues relevant to the grant of aid and do not contain evaluative material so as to attract legal professional privilege. They do not relate to the substantive proceeding, so litigation privilege does not apply either. These paragraphs should therefore be disclosed. [77] Paragraph 6 relates to an account rendered by Ms Fisher and would not be sought by the Board in terms of its earlier concession. [78] Paragraphs 7 to 18 should be withheld from inspection on two grounds. First, they can be viewed as being part of a routine report by Ms Fisher regarding the progress of the litigation. Secondly, they also reveal, particularly in sub-paragraph (a), matters relevant to Ms Fisher's strategy in advancing the substantive litigation.Document 99 - Email dated 8 March 2005 from Mr Howden to Ms Fisher[79] During the hearing I understood that this document had only been withheld by the Agency out of an abundance of caution. [80] There is no justification for withholding it on any of the grounds advanced by the Agency. It is to be produced for inspection to the Board.Document 100 – Letter dated 10 March 2005 from Ms Fisher to Mr Howden[81] This letter was written by Ms Fisher to the Agency responding to matters raised in a letter dated 1 March 2005 sent by the Board's solicitors to the Agency. In that letter the Board's solicitors had raised several concerns held by the Board regarding the reasons underpinning the Agency's decision to grant aid to Mr Ellis. One of these was a concern that the Agency had failed to take into account the fact that Mr Ellis had chosen to institute proceedings in this Court, when he could have had resort to the statutory remedies available to him at no cost under the provisions of the Health and Disability Commissioner Act 1994. [82] This issue is raised squarely in the Board's statement of claim, so the letter is clearly relevant to this proceeding. [83] Again, the letter is a communication between Ms Fisher and the Agency rather than Ms Fisher and her client. I consider that the circumstances that led to the creation of the letter also suggest that the letter does not come within the category of documents created in circumstances where the Agency could broadly be viewed as Ms Fisher's client. [84] The correspondence only arose as a result of the letter that the Agency had received from the Board's solicitors. It was not part of any ongoing correspondence between Ms Fisher and the Agency. I consider that the circumstances demonstrate that the Agency and Ms Fisher were clearly operating on arms' length basis at the time the letter was written, and that there is no justification for any finding that Mr Ellis is entitled to claim legal professional privilege in respect of it. [85] It is also clear that the letter has no real connection with the substantive litigation. It was not in fact prompted by Mr Ellis or by Ms Fisher, but by the Agency. There is therefore no basis upon which Mr Ellis could claim litigation privilege in respect of the letter either. [86] That may not, however, be the end of the matter. By March 2005 the Board's solicitors were directly confronting the Agency regarding its decision to grant aid to Mr Ellis. The letter dated 1 March 2005 is a detailed document, running to eightpages. It is apparent from it that the Board was on the verge of issuing judicial review proceedings to challenge the grant of legal aid. [87] In the opening section of the letter the Board's solicitors asked the Agency to provide the Board with an explanation of its decision to grant Mr Ellis aid, and requested also that the agency reconsider its decision. The first section of the letter concluded as follows:If the Agency is unwilling to provide an adequate explanation of the grant of legal aid to Mr Ellis and reconsider this grant in the light of statutory remedies, we have been instructed to initiate judicial review proceedings against the Agency on behalf of CMDHB.[88] The body of the letter also contained a separate section in which the Board's solicitors detailed the respects in which they considered that the Agency had committed reviewable errors. The letter concluded by requesting the Board to respond within 14 days, and stated that if no response was received the Board's solicitors were instructed to initiate judicial review proceedings on its behalf. [89] In my view the tone and content of the letter is such that any reasonable person in the position of the Agency would have concluded that litigation was imminent. For this reason it is possible that the Agency may have been able to claim litigation privilege in relation to the letter from Ms Fisher on the basis that it was sought by her in order to gather information to defend proceedings that were imminent. In other words, the Agency may have grounds to withhold production of the letter on the ground that it is subject to litigation privilege based on its own position at the time the letter was sought and received. [90] The Agency's Notice of Opposition and submissions do not, however, appear to assert privilege on this ground. In case I am wrong on this point, I propose to refrain at this stage from reaching a final conclusion in relation to document 100. Any further submissions in relation to it (which should be as concise as possible and not traverse ground previously covered) are to be filed and served by the Agency not later than 22 September 2005, with submissions in response (if any) to be filed and served by 29 September 2005.Result[91] For the reasons set out above, and subject to final resolution of the status of document 100, the application is granted in part. [92] It should not be difficult for counsel to implement my findings. Should any issue arise, however, both parties have leave to ask the Registrar to place the matter before me again so that formal orders can be made.Costs[93] The application has been partly successful and partly unsuccessful. I am also mindful of the fact that counsel adopted a co-operative approach at the hearing, and that the Board accepted at an early stage that certain categories of information should properly be withheld. [94] For these reasons my tentative view is that costs should lie where they fall. Should either party wish to advocate a different approach, memoranda seeking costs are to be filed and served within 21 days. Memoranda in response are to be filed and served within 21 days thereafter, and memoranda in reply 14 days after that. I will then determine the application on the papers.Next event[95] I am aware that the Board has filed an application to strike out the substantive proceeding brought by Mr Ellis. That application is due to be heard before a Judge on 1 November 2005. If successful, the strike-out application would obviously also effectively spell the end of this proceeding. [96] For this reason I propose to nominally adjourn this proceeding to 1 November 2005 at 10.00am, when it is to be called along with the substantive proceeding (CIV 2004-404-7108). Directions in relation to the future conduct of this proceeding can be given once the outcome of the strike-out application is known.______________ Lang J