WHITEHOUSE, DAVID JOHN WHITEHOUSE and ANOTHER AGAINST THE LORD ADVOCATE [2019] ScotCS CSOH_38 (09 May 2019)

WHITEHOUSE, DAVID JOHN WHITEHOUSE and ANOTHER AGAINST THE LORD ADVOCATE [2019] ScotCS CSOH_38 (09 May 2019)

The Lord Advocate, represented by Advocate depute, is entitled to assert legal advice privilege over confidential communications with legally qualified COPFS officials acting as lawyers, even if the communications relate to the core issues of the dispute. Privilege is absolute and not subject to a balancing exercise. There was no waiver of privilege in this case.

Citation
[2019] ScotCS CSOH_38
Parties
Pursuers: David John Whitehouse and Another; Defender: The Right Honourable James Wolffe QC, Lord Advocate
Jurisdiction
Scotland
Judgment Date
09 May 2019
Procedural Posture
Civil Action for Damages / Interlocutory Motion Regarding Legal Advice Privilege Prior to Proof
Outcome
Defender's claim of legal advice privilege upheld; pursuers' motion refused.
Legal Topics
Legal Advice Privilege, Disclosure of Documents, Damages for Wrongful Restraint Order, Article 8 ECHR, Human Rights Act 1998
Civil Procedure Evidence Human Rights Legal Advice Privilege Disclosure of Documents Damages for Wrongful Restraint Order Article 8 ECHR Human Rights Act 1998

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Parties

David John Whitehouse and Another

Pursuers

The Right Honourable James Wolffe QC, Lord Advocate

Defender

Procedural Posture

Civil Action for Damages / Interlocutory Motion Regarding Legal Advice Privilege Prior to Proof

Legal Issues

  1. 1 Whether the Lord Advocate can claim legal advice privilege (LAP) over internal communications between Advocate depute and COPFS officials
  2. 2 Whether the contents of the confidential envelope should be disclosed to the pursuers as evidence

Ratio Decidendi

The Lord Advocate, represented by Advocate depute, is entitled to assert legal advice privilege over confidential communications with legally qualified COPFS officials acting as lawyers, even if the communications relate to the core issues of the dispute. Privilege is absolute and not subject to a balancing exercise. There was no waiver of privilege in this case.

Court Disposition

Defender's claim of legal advice privilege upheld; pursuers' motion refused.

Orders

  • Contents of the confidential envelope are not to be disclosed to the pursuers and may be returned to the defender.
  • Case to be brought out by order to allow parties to consider further representations if desired.