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LTL 8/11/2011, Queen's Bench Division - Paul Rose QC
A child claimant had not waived privilege by sending confidential financial reports to a judge, along with counsel's advice, for the purpose of helping the judge to determine whether to approve a settlement. Experts' reports sent to the judge in those circumstances would retain their privilege. Amendments were made to the consent order allowing the defendant's insurers to request a medical examination of the claimant in the future, should the insurers wish to discharge their obligation to make periodical payments by the purchase of an annuity.
The court was required to consider whether to approve the settlement of a personal injury claim brought by a child (C) through her mother and litigation friend. The defendant (D) had made two offers of settlement to C. One was for the payment of a single lump sum and the other was for a smaller lump sum with periodical payments for the rest of C's life. C obtained two reports from a financial adviser and counsel's opinion before deciding to accept the second offer. A consent order was drawn up between the parties. C sent counsel's opinion and the financial reports to the judge. D sought disclosure of the financial reports and also sought amendments to the consent order. One of the proposed clauses of the consent order allowed D to discharge the obligation to make periodical payments through an annuity provider. D sought an order requiring C to undergo a medical examination in the future, in the light of the possible purchase of annuity. D argued that by sending the financial reports to the judge, C had waived privilege. D accepted that if the reports had been merely cited in counsel's opinion, then the question of waiver of privilege would not arise.
HELD: (1) If D was right in relation to the financial adviser's reports, then any report of any description sent to a judge for the judge's assistance in deciding whether to approve a settlement would lose its privileged status. It was appropriate for the court to be fully advised and to know exactly why those advising the claimant had decided to recommend the acceptance of a particular offer. Those representing a claimant should not feel inhibited from presenting all relevant materials to the judge by a fear that sending a material report to the judge would cause it to lose its privileged status. There was something remarkable and unacceptable about the proposition that it would be perfectly alright for counsel to set out in his opinion a particular report in quotation marks, absolutely verbatim and in full, thus preserving the privilege of the report whereas that privilege would be sacrificed by the submission of the report itself. An expert's report sent to a judge, for the purposes already described, retained its privilege (see paras 4-5 of judgment). (2) The court was satisfied that D's proposed clause concerning future medical examinations did not permit D's insurers willy-nilly to seek to make C undergo a medical examination. It was inserted for the sole purpose of obtaining a medical examination in the event that D's insurers wished to purchase an annuity, as the proposed annuity provider would wish to have an up to date medical picture of C. Its terms did not entitle D to obtain medical reports for any other purpose. It was unlikely in practice that any medical examination under that clause would ever occur, but the remote possibility could not be ruled out, and it was appropriate to include the provision in the light of D's option to discharge its obligations through an annuity provider (para.12). (3) The consent order was approved subject to amendments (paras 11-16).