Privilege and paying for care

The Court of Protection team at 39 Essex Chambers examine a case where a local authority sought disclosure of documents from a solicitors’ firm in a case of suspected ‘sharp practice’ over payment for care.

In a case that passed up by at the time, but is the subject of a very interesting article by Sheree Green in the most recent edition of the Elder Law Journal, the Chancery Division has recently clarified the obligations of solicitors where questions of ‘sharp practice’ arise in relation to dispersal of assets.

In LBB Brent v Estate of Mr Owen Kane & Ors [2014] EWHC 4564 (Ch), the Claimant local authority sought disclosure of documents to which legal professional privilege would normally attach on the grounds that the exemption did not apply because there was evidence of iniquity or sharp practice.

The local authority had provided residential care to Mr Owen Kane for six years prior to his death and considered that his two sons had deliberately engaged in a series of transactions (including disposing of his property) with a view to avoiding paying for his care. The local authority therefore sought disclosure of information held by a firm of solicitors, including legal advice about the transactions relevant to the dispute.

The judge considered the case law and concluded that there was a clear exception to the principle of legal professional privilege where there was prima facie evidence of iniquity (Barclays Bank v Eustice [1995] 1 WLR 1238, BBGP Managing General Partner Ltd v Babcock & Brown Partners [2011] Ch 296, JSC BTA Bank v Mukhtar Ablyazov and others [2014] EWHC 2788).

The judge held (and the claimant accepted) that there had to be prima facie evidence of iniquity for privilege to be defeated (C v C [2008] 1 FLR 115).

The judge was satisfied that there was prima facie evidence of sharp practice in the present case and that consequently legal professional privilege did not apply. Disclosure was ordered.

This case is a useful reminder that even legal advice can be subject to an order for disclosure where there is prima facie evidence of iniquity/sharp practice.

This article was written by the Court of Protection team at 39 Essex Chambers.