PRIVILEGE FOR CERTAIN COMMUNICATIONS RELATING TO PATENT PROCEEDINGS (Hansard, 23 July 1968)

§ Mr. Graham Page (Crosby)
I beg to move, in page 17, line 18, after 'proceedings', insert 'before the High Court or'.
The Clause gives to those who consult patent agents the same privilege with regard to their communications with them as they would have if they were consulting a solicitor. That privilege is that neither party shall be forced to disclose in litigation communications made for the purpose of pending or contemplated proceedings. This is frequently referred 457 to as "solicitor's privilege". It is nothing of the sort. It is no privilege to the solicitor. It is a privilege to everyone who consults a solicitor that the solicitor shall not be forced to disclose the communications which have been made to him, provided that they are communications in connection with pending or contemplated proceedings.
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The Law Reform Committee, in its Sixteenth Report—Command 3472—after dealing with and approving privilege in respect of consultations between a solicitor and his client, went on to deal with communications between a patent agent and the person who consults him. Paragraph 25 said: It has been represented to us that communications of the kind described in paragraphs 18 to 23 above,"— communications between solicitors and clients— if made for the purpose of pending or contemplated proceedings in the Patent Office or the Patents Appeal Tribunal to be conducted by a patent agent, should be entitled to the same privilege as they would have if the patent agent were a 'professional legal adviser'. We think that it is clearly right that they should and, in our view, the principle on which is based the common law rule of privilege in aid of litigation would extend to such communications. So there has been inserted in Clause 15 a similar privilege for communications between a patent agent and his client as between a solicitor and his client when they are made in connections with appeal proceedings before the Patent Office or the Patents Appeal Tribunal.
But the Bill goes a little further than the Report. It gives privilege even when these communications are in connection with an application to the Patent Office, when perhaps no litigation such as we understand the word is pending. But in paragraph 24 the position is considered of when the patent agent is consulted in connection with High Court proceedings and separate perhaps from proceedings in the Patents Appeal Tribunal. Paragraph 24 begins: The category of professional legal advisers is confined to barristers and solicitors. Patent agents do not fall within it and there is no general privilege for professional communications between them and their clients. Insofar as they are instructed in connection with pending or contemplated proceedings in the High Court, no problems arise; communications with them would be privileged under the 458 rules referred to in paragraphs 20, 21 and 23 above, since in these proceedings solicitors and counsel are also instructed. With respect to the Committee, I think that it has fallen into error there. There are many occasions in which a client may consult a patent agent without first consulting a solicitor or counsel. We are left with the extraordinary position that if, when the client decides to go to his solicitor first when he is concerned with some problem which may lead to High Court proceedings over an invention, the solicitor takes him along to a patent agent, there is privilege. Communications then between the client and the patent agent will be privileged. They are in contemplation of High Court proceedings. But if the client goes to a patent agent first, as frequently he does, without consulting a solicitor, then the communications between the client and the patent agent are not privileged. This is where the Committee went wrong in its Report. It said that there was no problem, because on every occasion when a client consulted a patent agent, he would have a solicitor or counsel and would have been taken to the patent agent by the solicitor, which is not so; it does not always happen.
Therefore, I have moved the Amendment in order to get over this anomaly. It seems ridiculous that, merely because a client goes to the solicitor first and is then taken to the patent agent, the communications between the client and the patent agent will be privileged, but if the client goes to the patent agent on his own and asks for advice, the communication will not be privileged. If my Amendment is agreed to, communications will also be privileged when the client goes to the patent agent on his own and asks for advice in contemplation of proceedings.

§ The Solicitor-General
The Amendment would extend Clause 15 so as to make it confer on patent agents a legal professional privilege in respect of proceedings before the High Court as well as proceedings before the Comptroller-General and the Patents Appeal Tribunal under the Patents Act, 1949.
The history of the matter is that at a late stage in the progress of the Bill, in the middle of June, suggestions were received by us informally from the Law Society that the privilege proposed to be 459 conferred on patent agents should extend to communications made when a patent agent was consulted in connection with High Court proceedings. The point was made that the patent agent in substance acted as a legal adviser and that, as many patent agents were in fact solicitors, the existence of the privilege should not depend on whether such an agent was consultedqua agent orqua solicitor. It was said that the Chartered Institute of Patent Agents supported this proposal.
It remains true that the proposal is directly contrary to what was recommended by the Law Reform Committee in its Report on Privilege in Civil Proceedings. The hon. Member for Crosby (Mr. Graham Page) founded his argument, very fairly, on the basis that the Committee had been wrong. Leaving aside for a moment the merits of the issue, hon. Members will appreciate that one would have to be extremely cautious before going against a recommendation of the Committee on a point raised as late as this was raised. I readily acknowledge that that does not go to the merits, but it is a consideration which must clearly be in our minds.

§ Mr. Graham Page
Surely the hon. and learned Gentleman will agree that the Committee did not recommend this because it thought that it already existed and that it was therefore unnecessary to give it. It thought that a client always consulted a patent agent arm in arm with his solicitor, which is just not the fact.

§ The Solicitor-General
The substance of the hon. Gentleman's argument was that the Committee was wrong. He used that expression perfectly clearly and without equivocation. When that is said about a recommendation of a Committee of this calibre in the context of a proposal coming forward so late, the House would obviously be well advised to proceed with the greatest possible caution.

§ Mr. R. J. Maxwell-Hyslop (Tiverton)
I did not catch when it was that the hon. and learned Gentleman said that this proposal came forward. Was it in the middle of July, or no less than five weeks ago which he keeps describing as being so late? Was it no less than five weeks or a month ago which is so late that nothing can be done about it? It seems a very generous period of time.

§ The Solicitor-General
It was the middle of June, but the hon. Gentleman cannot make much of that. It was received by us two days before we started consideration of the Bill in Committee. On any fair view I should have thought that it came too late. I have some difficulty in seeing on what grounds the hon. Gentleman considers this Amendment to be necessary. If the patent agent is not also the party's solicitor, communications passing between him and the solicitor, or him and the client will have privilege under the current rules. That is set out in Paragraphs 18–23 of the Law Reform Committee's report. The only circumstance in which the Amendment would confer privilege where none exists under the current law, or under Clause 15 as drafted, would be that in which the communication passed between the patent agent and the client, otherwise than for submission to the client's solicitor. This I would have thought could occur in practice only where the patent agent was also the client's solicitor and was acting as patent agent, but not as solicitor—a circumstance which I would think unlikely, since the communication,ex hpothesi is being made for the purpose of pending or contemplated proceedings in the High Court.
I am not persuaded that this Amendment is necessary or desirable. I confess that if the proposal was put seriously, it is a pity that the Law Society, who were specifically invited to submit evidence to the Committee, and responded fully to that invitations, did not make it at a much earlier stage. In the face of the Committee's recommendation, we feel that it could not be accepted without much greater consideration than it is possible to give it on Report. If the Government were persuaded that there was here a substantial lacuna and defect, one would not have resort to the timetable aspect of the matter that I have thought it right to present. When one adds, that, with respect to the hon. Member, there is not very much to this anyhow, one is entitled to ask the House to share the view that as the matter has developed, the point has not really received the consideration that would warrant a change in the language of the Bill.

§ Mr. Graham Page
I am astonished that the Solicitor-General should take 461 the point that Report stage of a Bill is too late to present an Amendment. This is surely the stage when major Amendments are received.

§ The Solicitor-General
The hon. Gentleman cannot put that kind of proposition into my mouth. I said nothing of the kind. Of course Report stage is not too late to accept Amendments. I never heard such nonsense enunciated from either side of the House. The point is that one has to have regard to each particular case on the merits of the issue, the size of the point and consider it in relation to a report by a reform committee, and the manner in which these propositions come forward, and the order of time in which they came forward. When these matters are considered, and one thing is balanced with another, I am suggesting that it is not appropriate at this stage to make this change.

§ Mr. Graham Page
Nevertheless, the Solicitor-General made great play of the fact that the Law Society had been invited to give its comments on the Bill at an early stage. Indeed, he admitted that it had put forward the proposition which is included in my Amendment two days before the Committee stage began. He says that that is too late. If a body like the Law Society is invited to put forward Amendments to the Bill, if it is not to do so before the Committee stage, when must it do so? The Law Society has to consider these matters carefully in various committees. It brought forwards its proposition two days before the Committee stage and put it to the Government at that stage. It was not accepted by the Government and, therefore, it is brought forward as a formal, specific, quite clear Amendment at this stage.
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It is true that I expressed the opinion that the Committee was wrong. It was 462 wrong in assuming that this privilege existed and in assuming that whenever a patent agent is instructed pending High Court proceedings, the privilege will exist. That was what the Committee said. It said that there was no need for an Amendment to the law in this respect because the privilege existed.
In my practice, I have known many occasions when a client has consulted a patent agent first. When he has found that someone is infringing his rights in an invention, he has gone to a patent agent and asked advice about proceedings. He is not under an obligation to come to a solicitor at that stage. Sometimes he does not do so if he has been in touch with a patent agent before. If he does that, however, there will be no privilege in the communications between the client and the patent agent, and yet if he goes to the solicitor first and the solicitor takes him to the patent agent, privilege will exist. That is the anomaly which not only I, but the patent agents, want to overcome, and which the Law Society has put to the Government and wishes the Government to overcome by the Amendment.
The Solicitor-General has cast the Amendment aside by informing the House that it is too late a stage to deal with a minor Amendment of this sort. It may be minor, and such a situation may not occur more than once or twice a year, but it is an anomaly which there is opportunity to put right in the Bill. The House should put it right.