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Neutral Citation Number:	2009 UKUT 204 AAC
Reported Number:
File Number:	S 1963 2009
Appellant:	LM
Respondent:	London Borough of Lewisham
Judge/Commissioner:	Three-Judge Panel / Tribunal of Commissioners
Date Of Decision:	09/10/2009
Date Added:	20/10/2009
Main Category:	Tribunal procedure and practice (including UT)
Main Subcategory:	tribunal jurisdiction
Secondary Category:	Special educational needs
Secondary Subcategory:	Other
Notes:	Reported as [2010] AACR 12 Tribunal procedure and practice – jurisdiction – whether appeal lies to Upper Tribunal against decision to make case management instruction Tribunal procedure and practice – legal advice and litigation privilege – disclosure of instructions to expert The appellant appealed to the Health, Education and Social Care Chamber of the First-tier Tribunal against the contents of an amended statement of special educational needs in respect of her daughter and the naming of the particular school. A First-tier Tribunal judge issued case management directions requiring the appellant to provide to the tribunal and to the respondent a copy of any specialist report or draft report obtained, together with a copy of the letter of instruction and details of all records and reports seen by the specialist. The appellant’s solicitors applied to the First-tier Tribunal for directions that both the instructions and the draft of any report were privileged from disclosure. On 26 July 2009 a different judge of the First-tier Tribunal refused to amend the directions as requested. The appellant’s solicitors applied for permission to appeal to the Upper Tribunal against the disputed parts of the directions. The First-tier Tribunal Judge refused to review the decision of 26 July 2009 and also refused permission to appeal against it to the Upper Tribunal. An Upper Tribunal Judge gave permission to appeal, limited to questions relating to the jurisdiction of the Upper Tribunal to consider interlocutory appeals, questions relating to legal professional privilege, and questions relating to the power of the First-tier Tribunal to give the case management directions that were given. The respondent argued that this was in reality an attempt to appeal against the refusal to review, which is an excluded decision under section 11(5)(d) of the Tribunals, Courts and Enforcement Act 2007. Held, allowing the appeal, that: 1. the purpose of the exclusion in section 11(5)(d) was to prevent an appeal being brought against a review decision where it should be brought against the decision which it has been sought to have reviewed and the current appeal was in reality an appeal against the decision of 26 July 2009 confirming the decision to make the case management directions and, as such, not an excluded decision, so that there was a right of appeal to the Upper Tribunal under section 11 of the 2007 Act (Dorset Healthcare NHS Foundation Trust v MH [2009] UKUT 4 (AAC) cited) (paragraphs 14 and 15); 2. the traditional rule is that confidential communications between a client and a legal adviser or between a legal adviser and a third party need not be given in evidence by the client and, without the client’s consent, may not be given in evidence by the legal adviser in a judicial proceeding if the communication is made either to enable the client to obtain, or the adviser to give, legal advice (“legal advice privilege”) or with reference to litigation that is actually taking place or was in the contemplation of the client (“litigation privilege”) (In Re L (A Minor) (Police Investigation: Privilege) [1997] AC 16) cited) (paragraph 16); 3. procedural rules cannot deprive a party of substantive rights given by the general law (General Mediterranean Holdings SA v Patel and another [2000] 1 WLR 272; [1999] 3 All ER 673) and outside the specific exceptions that have developed there can be no doubt that legal advice privilege does apply to proceedings in the First-tier Tribunal and that the tribunal has no power to give a direction, compliance with which would infringe the privilege (paragraph 24); 4. proceedings before the First-tier Tribunal are litigation for the purposes of litigation privilege but, as the tribunal in this case did not require either party to disclose a report unless it proposed to rely upon it, there would at the time of disclosure necessarily have been a waiver of privilege in both the report and the instructions upon which it was based except insofar as the instructions contained material protected by legal advice privilege (paragraphs 29 to 31); 5. the only error in the tribunal’s directions was that it did not expressly exclude from the ambit of the instructions that had to be disclosed any instructions to which legal advice privilege attached (paragraph 32). The Upper Tribunal re-made the decision by substituting for the final sentences of paragraphs 4 and 5 of the case management directions the wording set out in paragraph 2 of its decision. ________________________________________
Decision(s) to Download:	[2010] AACR 12 bv.doc