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Fergus Whyte in leading legal privilege case

Arnot Manderson Advocate appears in leading Scottish legal privilege and regulatory case


Arnot Manderson junior Fergus Whyte (pictured below) recently appeared as sole counsel for the respondents in the Inner House case of Petition of the Scottish Legal Complaints Commission v Murray & Anor [2022] CSIH 46. The SLCC as petitioner was represented by Christine O’Neill KC and the case also featured a joint intervention by the Law Society of Scotland and the Faculty of Advocates, represented by the Dean of Faculty (Roddy Dunlop KC). Fergus was instructed by Grant Knight of TC Young Solicitors.

The case focused on the question of whether the regulator, the SLCC, could request legally privileged documents in the course of investigating a complaint which originated not from a client of the respondent solicitors but from a third party. The client had refused permission to disclose the file and the respondent solicitors resisted production on that basis. The matter therefore had to be determined by the SLCC seeking an order from the Inner House as to the extent of the SLCC’s powers to override confidentiality and legal professional privilege between solicitors and their clients. This was the first time this issue had been considered by the Scottish courts though similar disputes have arisen in other jurisdictions.

As Mr Whyte notes this was a major opportunity to clarify and affirm the concepts of confidentiality and privilege as they feature in Scots law more generally. The Inner House’s opinion offers robust protection for legal professional privilege and recognises its fundamental importance. The implications for legal professionals make the opinion essential reading both as a matter of general importance and as a question of regulatory practice for solicitors.

Mr Whyte called to the bar in 2020 and specialises in civil and commercial disputes. Prior to his calling to the bar in Scotland, Mr Whyte was a barrister and solicitor in New Zealand. Full details of his background and experience can be found here.

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