14.33Menon and Others v Herefordshire Council [2015] EWHC 2165 (QB)
It was not appropriate to order disclosure of documents containing local authority legal advice, in an action in misfeasance against it
Facts: owners of a residential care home claimed that local authority social workers, involved in the cessation of referrals to the home and, ultimately, the moving of all residents to other homes, were guilty of misfeasance in public office.
Judgment: Lewis J refused the owners’ application for summary judgment and for disclosure of documents containing legal advice about the lawfulness of the social workers’ actions, which had been provided pursuant to an order of the First-tier Tribunal (Health, Education and Social Care Chamber) in proceedings in which one of the claimants, but Herefordshire, had been a party: even in the absence of an express restriction in the order, there would have been an implied obligation or undertaking that the documents would not be used for any collateral purpose without the leave of the court or the express consent of the party disclosing or producing the document:
61. In my judgment, it would not be appropriate to grant permission to the claimants to use documents containing legal advice which were produced for the purposes of other proceedings. I reach that conclusion for the following reasons. First, the documents were obtained by compulsion. Secondly, they were obtained in circumstances where they were only to be used for the proceedings in the First-tier Tribunal. Thirdly, they contain legal advice and, as indicated above, there is a very high value placed upon parties being able to protect legally professionally privileged documents. Fourthly, the claimants are seeking to take advantage of an error on the part of the defendant in complying with the production order of the First-tier Tribunal without, it seems, realising that these documents contained legal advice. It is not appropriate, in my judgment, to grant permission to the claimants in these circumstances to use and rely upon the documents in these proceedings which are in their possession as a result of the production order made by the First-tier Tribunal in other proceedings.