The case of Walter Lilly & Company v Giles Mackay and DMW Developments Limited 2012 should be of particular interest to those engaged in the procurement of legal services.
Walter Lilly is a contractor based in Croydon who specialised in high value residential refurbishment. I had quite a lot of dealings with Walter Lilly back in 2005 because I was employed by one of their associated companies as an in-house lawyer. They were viewed by many as a “gentlemen like” contractor who did not really have any contractual disputes, although clearly the claim against Mr Mackay and DMW was a very large claim indeed.
What is interesting in the case of Walter Lilly is that Mr Justice Akenhead, quite rightly in my opinion, said that the advice that the Defendants had taken from their former claims consultants, Knowles, did not benefit from privilege. Knowles were claim consultants, they were not a firm of solicitors or indeed practising barristers and therefore the rules on legal professional privilege and legal advice privilege did not apply, i.e the advice and indeed all documentation passing between Knowles and the Defendant had to be produced to Walter Lilley in discovery – none of it was confidential. Fantastic! What a result for Walter Lilley. There was nothing particularly complex in the legal arguments raised by Walter Lilley, but it was a masterstroke of strategy and doubtless had a massive impact upon the outcome of the case.
The Judge found that whilst claims consultants may boast of employing “legally qualified personnel”, they are rarely a practising firm of solicitors or barristers. They often, but not always, employ non practising barristers. A non practising barrister could be a barrister that is retired from practice; he could be a paper barrister, i.e a barrister who has passed his academic legal training but did not complete his practical training – arguably the biggest hurdle to becoming a practising barrister. Non practising solicitors are a slightly different beast – i.e they completed their practical training and are allowed to practice as a solicitor, but are not currently doing so. The test however to claim privilege, i.e to ensure the documentation is confidential, is that the solicitor or barrister has to be practising as such. In this case of Walter Lilley, it was found that whilst the advisors of Knowles held themselves out to be non practising barristers, they were not practising barristers and consequently the documentation that passed between the Defendant and Knowles had to be disclosed.
The Judge said that it did not matter that the individuals instructing claims consultants thought they were practising barristers. The test is whether or not they hold themselves out as practising and indeed whether or not they were indeed practising.
In the age of the internet it is easy to find organisations that hold themselves out as “lawyers” or providing legal services, but the term is largely meaningless.
Non practising lawyers clearly can provide a good service and indeed a useful service in certain circumstances. It amazes me that the costs of these non practising lawyers are often far more expensive than practising Solicitors or Barristers regulated by the Solicitors Regulation Authority or indeed Bar Council, but that is another story.
It will be interesting to see how the law develops after the case of Walter Lilley. Certainly I have a few cases when the other side is represented by claims consultants and even a debt recovery agent who has purported to issue a letter of claim under the pre-action protocol for construction and engineering disputes. In view of Walter Lilley we will be requesting disclosure of the other side’s files – they may not produce anything of interest but certainly there is much mischief that can be caused by making such a request – a request which will seemingly be hard to resist.
