Lessons for Lawyers: NA v MA and D (A Child)

Family Law|June 17th 2011

I spent much of yesterday looking over 24 of our files. I review all of the files at Stowe Family Law at least once a month, and it is tiring work. I’ll admit that when I review files I’m tough on our fee earners, even my partners, and deliberately so.

When I pore over each file’s contents, I ask myself the following questions. Is there anything missing? Anything that I’m not happy about? Anything that still needs doing? No file review system is perfect, but I’ve found that a second pair of eyes can help to dot the ‘i’s and cross the ‘t’s.

I apply my own experience to file reviews. Over the years I have navigated many different situations, some expected and some unexpected, and experience is what I now have in spades. I do have a pretty good idea about what is going to happen in each case, and I like to check the file carefully and make sure that the case is proceeding as I think it should be.

I am always keen to see the detailed attendance notes, which confirm the instructions received from the client and carefully explain the advice given. The file is a paper trail, and it should be easy to follow. We can be confident that if the unexpected does happen, we are as ready and prepared as we can be.

One point that I make to fee earners, is to bear in mind that a file may not stay within the firm. If it goes elsewhere, would you be happy for it to be seen by others, who may not be as well-disposed towards you as I am? For example, a client may decide to instruct new solicitors. It happens to every firm in the country. You can’t expect to hit it off with every client, especially those who are going through a tough time themselves. When it does, the file of papers must be transferred.

Over the years I have noticed that some solicitors, when we have asked them to send their files to us, seem to play games. They delay or remove chunks of the files, thinking we won’t notice. As far as we are concerned, if our client has been charged for everything on that file, then our client is entitled to it. Does this happen because the files aren’t in great condition, and the previous firm is anxious to escape criticism? Perhaps. It’s another good reason to keep all files in tip-top condition.

On other occasions, the court and the opposition will get to see the files. Would you be ready for that?

Normally lawyers and clients alike can expect that the privileged (confidential) lawyer–client relationship will remain sacrosanct. The client can freely confide in the lawyer and the lawyer can advise the client. Both of them can be confident that no-one else will ever get to know what was said by each of them to the other and more importantly, that what they have said can never be used against either of them.

On certain rare occasions, however, privilege may be waived by the client, so that it can be used against both of them. For example it can happen when, in order to pursue a course of action, the client has no choice but to waive privilege.

NA v MA: “make as bad as poss”

In NA v MA [2006] EWHC 2900, there was a savage “trial within a trial”. The husband’s legal team mercilessly cross-examined the wife’s legal team about notes made by them in the run-up to the wife’s signing of a postnuptial agreement. The validity of this postnuptial agreement was hotly contested.

Legal professional privilege had to be waived in that case, given the wife’s argument that she had been placed under duress when she signed the postnup. The husband counter-asserted that his wife and her lawyers “had a strategy and had deliberately entered into a course of conduct that would give her an exit route” from the postnup. The file notes had to be disclosed and privilege was waived.

One member of the wife’s legal team was on a sabbatical in Japan at the time. She had to undergo a cross-examination by video link, which brought her to the verge of tears. Nothing was left unturned.

One note of a meeting contained the phrase, “make as bad as poss”. This phrase became the subject of great scrutiny, as did one of her colleagues, a partner in the firm who had apparently altered a note of a meeting at which he had not even been in attendance.

Would you alter the note of a meeting you had not attended? Small wonder then that the lawyers had a tough time, even though the postnuptial agreement was ultimately set aside.

On other occasions, privilege may be inadvertently waived.

D (A Child): “a paradigm shift”

Flagging during the file reviews yesterday, I had a coffee and began to read the case of D (A Child) (2011) EWCA Civ 684 which has just been published. Suddenly I was galvanised back into action!

This case involved a child who had suffered bone fractures, and for whom the local authority had obtained interim care orders. In her initial witness statement, the mother said that she did not know how the child had received his injuries. A month later, she dramatically altered her account of how harm could have been caused to the child, in what His Honour Judge Barnett described as “a paradigm shift” of positions. This time she alleged that the father had threatened to kill her if she spoke to her solicitor “about what has happened with L”.

The issue before the court was that the mother’s statement involved a detailed account of her meetings with her solicitor and barrister. The father argued that by providing such a detailed account, she had waived legal professional privilege. He sought disclosure of the attendance notes made by her solicitors and counsel at her meetings with them.

His Honour Judge Barnett had conduct of the fact-finding hearing, and his conclusion was paraphrased as follows:

Without producing the whole pie, it would be impossible to decide whether or not the mother, cornered as she was, had simply behaved like little Jack Horner, pulled out a plum, and said, “What a good girl am I”. Having an unexpurgated account of how the witness statement evolved was the only fair way to meet the Father’s concern that the Mother may have been led by her lawyers into saying things to please them.

The Court of Appeal decided that notwithstanding the “substantive absolute right of fundamental importance to the administration of justice as a whole”, the mother had waived her entitlement to claim legal professional privilege so that all the notes had to be disclosed. The court found that privilege “can only be waived by the person, the client, entitled to it”.

Delivering the judgement, Lord Justice Ward stated:

It mattered not whether the mother intended to waive privilege, viewed objectively she clearly did so in respect of matters contained in her statement.

However as our firm’s Chief File Reviewer (!) what I particularly noted was this: counsel for the mother argued that she had not been advised as to the nature of the privilege, or the potential consequences of its waiver or partial waiver.

The icy response delivered by a senior judge of the Court of Appeal?

The waiver was made by the client for it is the words of her witness statement which lose her the protection of professional privilege. The effect of those words prevails, notwithstanding the fact they were drafted by a solicitor and notwithstanding the fact that neither she nor her advisers appreciated the consequence those words would have.

This case confirms to me, not for the first time, how easy it can be for any of us to trip up in a legal minefield. No-one can ever expect to get through a legal career without slip-ups. The best will in the world is no substitute for hard-won experience – and hindsight, of course. As lawyers, we do assume that what we hear from our clients, and the advice we give them, will always stay confidential. As these cases clearly demonstrate, that is not always the case. What we can do is make sure that we are as prepared as possible with the client fully onside, so that if it becomes necessary, a file can be handed over with confidence.

Reviewing our files may be wearing and it certainly doesn’t make me any more popular in the office, but I returned to it with renewed vigour yesterday…

The founder of Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers. She retired from Stowe Family Law in 2017.

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  1. Tulsa Divorce Attorneys says:

    Two pairs of eyes are always better than one I say – especially when one of the pair of eyes has a tendency to think more ‘big picture’ and the other pair of eyes thinks more in terms of ‘details’.

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