Summary

The fact that counsel had referred to instructions in her opinion did not make those instructions discloseable.

Facts

Defendant and Part 20 claimant's appeal from the decision of Lightman J dated 30 May 2002. The appellant argued as follows: (i) the judge was wrong to strike out the asserted implied term that counsel's opinion would be given on the basis of the true facts and proper instructions as it could not have been the parties' intention that the claimant could rely on an opinion based on an allegation that was not true or on instructions that limited counsels' consideration to confirming the line of reasoning set out in those instructions; (ii) counsel's instructions should be disclosed as her opinion made reference to the content of the instructions; (iii) the judge had wrongly implied into the agreement a construction contrary to its wording, which required counsel to expressly state that any claim was bona fides if she was so satisfied; (iv) the judge had failed to consider whether counsel's test as to the reasonable chance of success was the required test; (v) the contractual requirement that counsel provide an opinion carried with it the implication that counsel would investigate and review the facts independently, and it was not enough for counsel to recite the core assertions set out in the instructions; and (vi) the claim that was the subject of counsel's opinion was fundamentally different from that set out in the claimant's particulars of claim, which had not therefore been vouched by counsel. The respondent supported the judge's reasoning and argued that there had been no waiver of privilege in relation to counsel's instructions.

Held

(1) Counsel's opinion was intended to be a form of certificate to give the appellant some form of protection. This court accepted that counsel might give wrong advice on erroneous instructions, but it was impossible to believe that the parties had intended, at the stage the opinion was given, that the appellant should be able to challenge the facts as presented to counsel or the propriety of the instructions. It was plain that the suggested implied term would run counter to the efficacy of the agreement. There was no basis for implying a term. (2) The instructions were not relevant to whether there had been compliance with requirements of the agreement. The fact that counsel had referred to instructions on her opinion did not make those instructions discloseable. The contents of instructions might be relevant if an opinion incorporated them without stating the facts stated in the instructions. (3) There was nothing in the agreement to indicate that an express statement of bona fides was required. It was evident that counsel had considered the question of the bona fides of the claim. (4) The judge had considered whether counsel's test came within the contractual requirement, and the test applied by counsel was open to her. (5) It was unrealistic to suggest that counsel could not accept what solicitors had stated to be the facts, providing there was no glaring error. (6) The claims vouched in counsel's opinion and asserted in the pleadings were identical.

Appeal dismissed. Permission to appeal refused.