The High Court has found that the Minister for Transport waived legal privilege over advice about penalty-point thresholds by disclosing parts of its contents in a judicial review case. The ruling was made on an inspection motion; it did not decide the underlying challenge to the penalty-point regime.
The applicant, Osama Elsharkawy, asked to inspect the Department of Transport’s original advice from 2014, updated advice from 2021 and advice reaffirming the later position. The dispute arose after the Department changed its interpretation of rules that set a seven-point disqualification threshold for learner and novice drivers. The applicant’s underlying case concerns the effect of that change on drivers who had entered the licensing system before August 2014.
The applicant says he received a fixed penalty notice for driving unaccompanied while holding a provisional licence, then received a full licence before paying the notice. He says he believed the 12-point threshold applied to him. The Road Safety Authority later notified him of a six-month disqualification. Those are elements of his underlying case, which the court said it did not need to resolve on this motion.
The Minister opposed inspection, arguing that references to legal advice had been made to provide context and respond to the applicant’s own pleadings, and that the advice had not been relied on for its contents. The Minister also raised objections to the procedure used to seek inspection.
The court took a pragmatic view of the procedural objections. It considered the advice documents identifiable and concluded that inspection would give the applicant a litigious advantage if privilege did not prevent it. The central question was whether the Minister had waived privilege.
The judge found that an affidavit from Department official Ross Hattaway went beyond noting that advice had been obtained. It described how later advice disagreed with the original interpretation, stated that there was no reason certain drivers should not face disqualification for seven new points, and addressed how points accumulated before and after August 2014 could affect disqualification. The court said that this disclosed part of the advice’s contents and effect while the Minister was contesting claims that its change of position was unreasonable, unfair, disproportionate or retrospective.
The court concluded that the advice had been deployed for the Minister’s litigious advantage and that allowing this without inspection would be unfair to the applicant. It proposed an order under Order 31, rule 18 directing inspection of the 2014 advice, the 2021 advice and the reaffirmed advice. Because the judgment was delivered electronically, the matter was listed for 18 December 2023 to address the final form of the order and any costs application. The judgment does not state the outcome of that later hearing.