Legal professional privilege

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    Claimant arrested for benefit fraud – a large amount of documentation is seized during a search of the property. Claimant has an IUC and claims LPP when questioned about a number of documets.

    Although there is nothing specific, it is reasonably certain when cross referencing the HB file, the fraud investigation file and the prosecution file which letters were being referred to. Problem is that the information contained in them is pretty damning in respect of the claimant – they do not impinge on the original decision but suggest that further, alternative, decisions can/should be made.

    So, a number of questions in no logical order:

    1) Can LPP be claimed in respect of a TS hearing (I am pretty certain the answer is yes but would love to be contradicted)

    2) I do not KNOW the letters are to a lawyer, my instinct is to include them with a caveat – any thoughts?

    3) If they are subject to LPP is there any way round this (other than persuading the claimant to waive the privilige) – I think one occassion is if the lawyer is acting unlawfully but am not certain and do not think it would apply in this case anyway.

    4) Can I consider the letters when making a decision – even if TS cannot? I know this would lead to an absurd situation but if a County Court decision can be binding on TS but not the LA, why should this be any different?

    5) If I cannot consider them when making a decision can I make a request for information based on their contents?

    Kevin D

    In order….

    1) don’t know

    2) to 5):

    I can see no reason why you cannot ask for further information – although you may not get a response. If no response, simply put the letter in the bundle and, in the submission, state that you will be putting the same questions to the clmt at Tribunal. That way, the clmt is on notice and cannot rely on Article 6 (fair hearing etc) to argue he wasn’t informed of the issue(s).

    If the clmt refuses to answer at Tribunal, invite the Chair to draw inferences. If the clmt is absent, ask the Chair to draw inferences from the clmt’s failure to respond to your letter.

    In my view, the evidence can still be included with your bundle, but I’d agree that the submission should clearly state how it was obtained. The Chair then has the option of deciding whether the evidence can be considered. It’s worth bearing in mind that the means by which evidence is obtained makes little difference to whether it can be admitted to a Tribunal. Personally though, I’d stop short of thumb-screws….. (er, Article 3 of the HRA)….

    So long as your requests are reasonable, and they are all in the context of establishing the clmt’s correct HB/CTB, it will be hard for a Chair to (reasonably) criticise.

    Hope the above helps.


    Hi Pete,

    I’m not sure about the ins and outs of LPP, but I would be cautious about including the documents in the submission.

    My view is that you could find that you are in breach of Article 6 of the ECHR (right to a fair trial) and Article 8 (right to private and family life) if you disclose information that is protected by legal professional privilege – all the more so if the information is not directly relevant to the matter at hand.

    I’d suggest that you discuss the matter with the legal services department of your LA.



    Thanks – Agree with you on two out of three – not sure about the fair trial, I suspect that it would be the Tribunal falling foul but who knows.

    Anyway there are a lot of other issues on this case as well so am going to pass the buck and get formal written advice.

    Will post on here with the result when it comes back

    Julian Hobson

    para 35 of CH/257/2005 might help. One of the grounds of appeal was the inclusion of inappropriate or predjudicial evidence. I think it is possible to argue that the evidential weight is for the tribunal to decide.

    I would have thought that LPP might only be claimed in relation to letters about the proceedings rather than any correspondance with a legal proffessional that took place prior to the proceedings arising (although not sure).

    If I wrote to a solicitor confessing to a murder got a reply and kept a copy of the letters and they were subsequently found by the police, could I claim that they can’t be admitted as evidence ?

    However if I had corresponded with my solicitor during the course of the prosecution after my arrest then yes they could be covered by LPP.

    No expert here but it would seem to me that to be able to claim LPP would open all sorts of abuse.

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