Judge grants application over disclosure of correspondence

John Thomson v Berkhamsted Collegiate School (Defendant) & (1) Ian Thomson (2) Gracinda Thomson (interested parties)

(Queen's Bench Division — 2 October 2009)

John Thomson, the claimant, brought a claim against his former school for failure to prevent bullying. He subsequently discontinued at trial. The defendant sought to obtain a third-party costs order against the claimant's parents (interested parties) pursuant to rule 48.2 of the civil procedure rules as interested parties. The defendant applied for disclosure of the correspondence that passed between the claimant's solicitors and his parents. The parents opposed the application on the grounds that such documents were privileged.

In considering the application, the judge identified the relevant factors as: the strength of the application for third-party costs on present evidence; whether it would be obvious on summary assessment that the documents will be privileged; the potential value of the documents sought to determine the application; and whether an order would be just and proportionate in the circumstances.

The judge found that on the face of it the application was a strong one, as the interested parties were more than disinterested funders and had a vested interest in the claim succeeding. He was also convinced that the documents were potentially relevant, albeit he limited the period of time for which correspondence should be disclosed.

The judge did not consider that the documents were likely to be subject to legal professional privilege save for those relating to the interested parties' role as witnesses to the claim.

He noted the Catch-22 situation that if the correspondence was privileged in that it related to advice between a solicitor and his client, it would assist the defendant's case that the interested parties were, in fact, claimants.

In terms of proportionality, the judge recognised the exercise of disclosure would be carried out by the solicitors, in that they could extract such correspondence from their own files, and was not, therefore, an onerous duty on the parties. The judge thus granted the application for disclosure.

Comment

This is a potentially very important decision for schools and their insurers. Parents who believe that they can litigate through their children, and thereby avoid an effective adverse costs order, should take very careful note. Richard Wilkins, partner, BLM London

The following law report contributed by specialist insurance practice Berrymans Lace Mawer (www.blm-law.com) first appeared in Post Magazine on 3 December  2009

Disclaimer: The law report contains information of general interest about current legal issues, it does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. Specialist legal advice should always be sought in any particular case.