The case of Re D (A Child) (2011) provides a salutary warning to all those who have dealings with our legal system. During care proceedings, a mother changed her story as to how injuries to her child occurred. Specifically, she made a witness statement in which she set out in detail how her change of heart had evolved throughout a series of conferences with her legal team. She revealed she was given advice, and also the nature of that advice, as well as a step-wise encouragement to tell her story. She exhibited notes that she had made during the course of those conferences. The father asserted that in explaining her change of heart she had waived the professional privilege which exists between solicitor and client. Moreover, the father said that the waiver justified him seeking disclosure of the attendance notes made by the mother's solicitors and counsel at the various conferences. He argued that disclosure of the notes was the only way the court would be able to decide whether the mother was a reliable witness, or whether she had been led by her legal team to say things that pleased them.

The judge at first instance found that M had waived privilege, and fairness inevitably led to the need for full disclosure in order to have a full account of how M's witness statement had evolved. The mother appealed. At the appeal, the mother conceded she had waived privilege; the question was therefore was it unfair to the father for the mother not to reveal all of the relevant information she had in part begun to disclose. The mother's appeal was dismissed with the Court of Appeal stating that there had been a waiver of privilege and fairness demanded full disclosure of the relevant attendance notes.

This case highlights not only that you need to be aware of the fact that the advice you may give may prompt a change in heart but that all lawyers (not just those in the family arena!) need to be on their guard to protect their clients from revealing that advice either in written evidence or when giving oral evidence in court. Further, and on a wider level, it does not matter whether or not your client intends to waive privilege when they refer in a witness statement to the nature of the legal advice they have received. The effect of the words, objectively construed, prevails even if they are drafted by a solicitor and even if neither the solicitor nor the client appreciates that the words would waive privilege over the legal advice. In this case, it would appear that the solicitor did not appreciate that what was said Further details on the case can be found here in the witness statement amounted to a waiver of privilege.

Importantly, the Court of Appeal did confirm that saying "I am acting on the advice of my solicitors and counsel" does not ordinarily justify further disclosure of the advice or of the circumstances of a change of heart.

Further details on the case can be found here