Nikki Hunter

Practitioners may have read with interest the case of D v D [2021] CSOH 66 where both senior counsel and the instructing agent gave evidence about the advice which they tendered to their former client (the pursuer in this action).

The brief background is that in October 2020 parties reached an agreement in advance of a proof diet. The heads of terms of that agreement were set out in an email by the defender’s agents and acknowledged by the pursuer’s agents as accurately reflecting the agreement which had been reached.

Subsequent thereto, the pursuer disengaged from her agents and ultimately argued that the parties had not reached a valid and binding settlement. A further proof diet was assigned restricted to two matters:

1. did the purported compromise in October 2020 constitute a valid and binding agreement between the parties; and
2. if so, should that agreement nonetheless be set aside on the basis of unfairness or unreasonableness in terms of section 16 of the 1985 Act.

Lord Arthurson summarised the pursuer’s position as follows: “[She] appeared to accept that she had given the instructions referred to in the communings between agents on the morning of 6 October 2020 but that after the purported settlement she had left her solicitor’s office having signed nothing and had given no further instruction. In short, the purported agreement was not binding nor valid and in any event was not fair and reasonable.”

It is as a consequence of the pursuer’s position as part of those proceedings that privilege appears to have been waived – by way of a finding made by the court. Lord Arthuson explains in his judgment that “at the pre-proof hearing on 26 April 2021 a finding had been made that privilege had been waived in respect of the communings related to settlement negotiation culminating on 6 October 2020 and the Court had ordered that the pursuer’s former legal representatives could competently give evidence on these matters whether or not the pursuer consented”.

This should not be interpreted by agents as a green light to breach their duty of confidentiality if invited to do so by, say, a former client’s opponent. By doing so, you may find yourself subject to disciplinary proceedings.

Unless waived by the court (or your client) there will be few other occasions where privilege can be waived and agents should proceed with extreme caution before acceding to such a request.

Nikki Hunter is an associate at Morton Fraser