Dr Derek Ross is a Chartered Arbitrator, Accredited Mediator, Conciliator, Adjudicator and Dispute Board Member, and he accepts appointments worldwide as the neutral person in each of these construction dispute resolution methods.  Being also a Chartered Civil Engineer, he also accepts appointments as Expert Witness in building and civil engineering construction disputes. 

If you feel Dr Ross can assist you, please call him for a no obligation discussion on +44 (0) 1932 856463, or simply reply to this email with your details.

Below is an article he has written, which he hopes you will find of interest.

PRIVILEGED DOCUMENTS IN ADJUDICATION

Part 31 of the Civil Procedure Rules permits the judge in English litigation to order a party to disclose documents that are prejudicial to its case, and to permit the other side to inspect and to take copies of those documents, unless they are privileged under common law.  Absolute privilege attaches to legal advice obtained from practising barristers and solicitors, by virtue of their professional standing.  Privilege also attaches to the advice of other professionals, such as claims consultants, provided it comes into existence for the purpose of obtaining legal advice in respect of existing or anticipated litigation.  This latter privilege is known as litigation privilege.

The recent judgment in Walter Lilly v. Mackay [2012] EWHC 649 confirms that the advice of legally qualified claims consultants, who are neither practising barristers nor solicitors, is not of itself privileged, unless litigation privilege applies.  The final paragraph of that judgment also confirms that there is little authority at present on the issue of whether or not the advice of claims consultants is privileged if given when adjudication proceedings are in contemplation.  If not privileged, parties contemplating adjudication, but not at that stage contemplating litigation, ought to be cautious about the advice they request their claims consultants to commit to writing.

Under paragraph 13(a) of the Scheme for Construction Contracts adjudication procedure, the adjudicator has power ‘to request any party to supply him with such documents as he may reasonably require’.  Mindful that whatever the Adjudicator requests to see must also be sent to the other side, the ability of a party to UK construction adjudication to resist such a request, without incurring an adverse inference from the Adjudicator, will, I believe, depend on that party’s ability to persuade the Adjudicator that the document is privileged in some way.  As litigation privilege applies to the advice of claims consultants if it comes into existence when litigation is in contemplation, it seems equitable to me that similar advice obtained when adjudication is in contemplation ought also to be privileged.  In the absence of judicial authority on the point, it seems to me that an Adjudicator cannot reasonably deny a party the equivalent of litigation privilege in adjudication proceedings, simply on the basis that adjudication is not litigation.  If privilege were to be denied on that basis, then I would question why any impartial adjudicator, as opposed to the other party, would need, or could ‘reasonably require’, to see any undisclosed advice that a party may have received in relation to those proceedings.

Dr Derek Ross

 25 April 2012

Please Note: The foregoing article has been prepared by Dr Derek Ross for the general interest and benefit of readers.  It is not intended to be a definitive analysis of the law or of other matters discussed.  Neither does it create a client relationship between the recipient and Dr Ross.  Thus no liability is accepted in respect of any reliance placed on any statements made in the foregoing article.  Proper advice ought always to be taken before deciding to take, or not to take, action in respect of a specific issue.

© 2012 Dr Derek Ross & Layng Ross Construction Disputes Resolution.