In a number of cases I have advised on recently the party wall surveyors have declined to provide information from their file on that basis that some or all of it may be subject to privilege.
This post explores the situations where privilege may arise, and where it does not.
What is “Privilege”?
Privilege is a rule that allows a party to litigation to withhold evidence (either written or oral) from the Court or from third parties. If privilege arises it is an absolute right to withhold the evidence and no adverse inference can be drawn from a refusing to provide it.
Types of Privilege
There are a number of different types of privilege, some of which are not relevant here (for example the privilege against self-incrimination in criminal proceedings). The relevant privileges are a follows.
Legal Advice Privilege
Legal Advice Privilege (“LAP”) applies to communications between a client and a legal adviser for the purpose of obtaining legal advice.
A “legal adviser” means a member of a legal profession; that is, a solicitor, barrister, legal executive, licensed conveyancer or other foreign equivalent. The Supreme Court stated in R (Prudential plc and another) v Special Commissioner of Income Tax and others  EWCA Civ 1094 that LAP does not extend to other professionals who are not qualified lawyers, even where they are giving legal advice (in that case a firm of accountants).
This means that communications between a party wall surveyor and their appointing owner – even if legal or quasi-legal advice – will not have the benefit of LAP.
Litigation Privilege (“LP”) applies to communications between (i) a party to litigation and their legal adviser and (ii) between the party or their legal adviser and a third party. It is subject to the following conditions:
litigation is either pending or contemplated; and
the sole or dominant purpose of that communication is for the party to obtain legal advice or conducting that litigation.
Whilst a party wall surveyor is not a “legal adviser” they may well be a “third party” to whom LP applies if litigation is pending or contemplated.
What amounts to “litigation” is unclear. It includes proceedings in the Courts, such as an appeal under section 10(17) of the Party Wall Act. If an award is appealed then communications (i) between the party wall surveyor and their appointing owner, or (ii) between the party wall surveyor and their appoint owner’s legal adviser will be subject to LP if:
was created after the appeal was commenced or, if before, at a time when the appeal was contemplated; and
it was created for the sole or dominant purpose of allowing the appointing owner to obtain legal advice or to assist in conducting the appeal.
Whether the party wall process is “litigation” is unclear. The Courts have missed several opportunities to define what is “litigation” for the purposes of LP. The key test appears to be whether the process is adversarial, where LP applies, or whether it is inquisitorial or administrative, where it does not. In my view it is more likely than not that a Court will find that the party wall process is adversarial and so the possibility of LP arises.
However, where the dispute is to be determined by the two appointed surveyors then LP cannot arise between the appointed surveyors and their appointing owners because the surveyor are themselves are not “third parties”; they are the tribunal making the determination. The same issue arises where the award is made or to be made by one of the appointed surveyors and the third surveyor acting together under section 10(10) of the Party Wall Act.
However, when a referral to a third surveyor is made under section 10(11) of the Party Wall Act the appointed surveyors are not members of the tribunal making the decision. In that case it is arguable that the process of determining a dispute under section 10 of the Party Wall Act is “litigation”.
Therefore LP might arise if the communication between the party wall surveyors and the appointing owner (or their lawyers) is created for the sole or dominant purpose of allowing their appointing owner to obtain legal advice or to assist in conducting the referral to the third surveyor.
Without Prejudice Privilege
Without Prejudice Privilege (“WPP”) prevents statements made (whether in writing or orally) in a genuine attempt to settle an existing dispute from being used as evidence against that party.
Whether WPP applies depends on the substance, rather than the form, of the communication. Simply labelling a document “Without Prejudice” will not mean that WPP applies. Similarly, an omission to label a document “Without Prejudice” does not preclude WPP applying.
If it is not part of a negotiation genuinely aimed at settlement – for example, where parties or their appoint surveyors are merely asserting their case or criticising the other side’s case – then WPP will not arise.
In almost all cases documents in a surveyors file will not be subject to any privilege and will be subject to the usually rules of disclosure.
However, Litigation Privilege may apply where communications:
were created in respect of legal proceedings before a Court, or a referral to a third surveyor under section 10(11);
are between (i) a party wall surveyor and their appointing owner, or (ii) between a party wall surveyor and their appoint owner’s legal adviser; and
were created for the sole or dominant purpose of allowing the appointing owner to obtain legal advice, or to assist in the conduction of the appeal or referral.
Some documents may also be subject to Without Prejudice Privilege where they are negotiations genuinely aimed at settlement of the dispute.