The High Court decision in Hallows v Wilson Barca LLP, concerning the disclosure of evidence in a damages claim, is a reminder that correspondence with a local planning authority (LPA) is vulnerable to requests under the Freedom of Information Act (FOIA) (or the Environmental Information Regulations (EIR)).
The facts in Hallows are unusual. Hallows had brought a damages claim against his former solicitors, Wilson Barca, for failing to register rights of ways for a property he owned. The Claimant’s litigation solicitor wrote to the LPA requesting pre-planning advice on the likelihood of obtaining planning permission for residential development of the site. The Claimant intended to use the response as evidence to establish his losses in the damages claim, rather than to support a bona fide planning application.
Be careful what you ask for
The Defendant got wind of the LPA’s response – which was unhelpful to the Claimant – and obtained it by FOIA request. The Claimant asked the Court to restrict the use of the information, which would probably have meant that it could not be used as evidence. It claimed that the information was subject to legal professional privilege and should never have been disclosed by the LPA to the defendant under the FOIA.
Privilege has limits
It is worth noting that the normal rule is that information created to support a claim attracts legal professional privilege and that means it cannot be used against the party that created the document, unless the privilege in the information is waived.
In this case, the court ruled that:
- the pre-planning advice could attract legal professional privilege, and thus be exempt from release under FOIA (or use in any subsequent legal proceedings), but
- this would only be the case if the LPA had been informed of the true purpose of the request for information. In this case they had no idea that the claimant was only seeking pre-planning advice to assist with establishing his losses.
Although there are a number of quirks relating to this judgment (not least that the case turned on FOIA when the EIR arguably applied), several points are worth keeping in mind when considering the application of the information rights regime in the planning context:
- It is a timely reminder of the how FOIA/EIR requests can be used strategically to gain advantage in litigation;
- It is a warning for those people and companies who regularly provide sensitive information to LPAs that the information produced by the public sector can only rarely be regarded a truly safe from disclosure;
- In the rare circumstances where a person has asked an LPA to produce information, and the predominant purpose for the request is to support litigation, then in order to benefit from the protections offered by legal professional privilege, they must inform the LPA why they are asking for the information. Although there are many circumstances where an LPA would be sufficiently “spooked” by the possibility of litigation arising from a request, there may be circumstance where it is happy to cooperate.