A very brief blog here. Today Deemster Corlett gave judgment in the issue which remained to be resolved from his quick rejection of the earlier DHSC appeal against the conduct of the Ranson tribunal in relation to professional privilege. Had the Tribunal exceeded its powers in calling for evidence from a solicitor working in the Attorney General’s Chambers?

There was no discussion of whether the Tribunal could order a violation of legal professional privilege, both parties agreeing it could not (para.5). Instead, the decision turned on the duties which the solicitor was under in respect of their own conduct.

As Mr Halsall, arguing for Dr Ranson, put it: “The EET was however entitled to receive evidence as to how the Department’s solicitor had, as a matter of fact, discharged her onerous duties to ensure that disclosure was properly achieved. This would not involve disclosing legal advice but would relate to how, as a matter of fact, she had discharged her personal, professional obligations. Ms Heeley had in fact already provided a statement to the EET on 14 September 2022. This had dealt with factual issues and had clearly assisted the EET but without breaching LPP” (summarised, para.23).

.In relation to these onerous duties, Deemster Corlett noted: “It is clear from the authorities that a failure by a solicitor or an advocate to discharge his or her duties in relation to disclosure can lead not only to adverse inferences being drawn against the client, but also to wasted costs orders against the lawyer and/or a contempt finding. The extent to which our system of civil justice depends on the integrity of advocates in this respect (for example in ensuring disclosure of relevant documents which are unfavourable to the client) cannot be overemphasized”. (para.27)

Deemster Corlett interpreted the actions of the EET as compatible with determining these facts without violating legal professional privilege (para.32(1)). While it was unusual to seek evidence from a legal professional for one party: “They were entitled to come to the view that, the key witness Miss Magson being out of the jurisdiction and seemingly reluctant to provide information voluntarily, their best hope of getting near to the truth about disclosure was to require Ms Heeley to provide information about how she personally had approached disclosure. The EET were entitled to conclude that other avenues were closed to them. They knew that they should not bring about a breach of LPP and did not at any time intend to do so” (para.32(2)).