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18.5
Where privilege is not waived
The threat of wasted costs proceedings by one party against another party's lawyers is
potentially especially serious where justification of the respondent lawyer's conduct
cannot be given because his own client's privilege has not been waived. As Lord
Steyn pointed out in Medcalf v Mardell,
the decision of the House of Lords in R v
Derby Magistrates' Court, Ex p B [1996] AC 487 at 507, ascribed to legal
professional privilege an absolute character and appears to pre-empt the creation of
exceptions in the interests of justice. Accordingly, since the privilege is the client's
and not the barrister's or solicitor's to waive, the difficulty the lawyers face if they are
unable to rebut the suggestion of misconduct by divulging their instructions or advice
to their client is obvious.
The House of Lords has recognized this difficulty and conferred substantial protection
on legal representatives who find themselves in that position. Lord Bingham stated
the proper approach as follows :-
"Where a wasted costs order is sought against a practitioner precluded by legal professional
privilege from giving his full answer to the application, the court should not make an order
unless, proceeding with extreme care, it is (a) satisfied that there is nothing the practitioner
could say, if unconstrained, to resist the order and (b) that it is in all the circumstances fair to
make the order."
This approach would almost certainly also be adopted in Hong Kong.
Notes
[2003] 1 AC 120 at 138 §30.
At 136, §23.
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