Family Law

Family analysis: Sarah Bazaraa, senior associate at Pannone Corporate LLP, looks at the unusual facts in Bruzas v Saxton [2018] EWHC 1619 (Fam), [2018] All ER (D) 160 (Jun) and considers whether the issues raised in the case may redefine the boundaries of legal professional privilege.

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What are the practical implications of the case?

One of the most important stages in any litigation will be the disclosure of relevant documents. It allows the parties to assess the merits of a dispute and for the courts to determine its outcome with all cards firmly on the table.

A party is, however, entitled to claim privilege and withhold inspection of relevant documents if those documents are created during the course of seeking legal advice or in contemplation of litigation. Over the years, the courts have determined the boundaries in which privilege exists. The authorities give guidance on what should be done about privileged documents which are inadvertently disclosed or those which further a fraudulent or criminal design.

The case of Bruzas v Saxton is, however, unique. It raises the novel question of whether privilege can be asserted in deliberately disclosed privileged material which potentially reveals acts of wrongdoing. The case invites the court to reconsider the parameters for privilege and the circumstances in which this fundamental right may be lost.