Decision 259/2025:  Duff and Phelps Limited v The Lord Advocate civil court action – mediation information

Authority:  Scottish Ministers
Case Ref:  202500115
 

Summary

The Applicant asked the Authority for details of the instruction and all other information given to Core Solutions Limited, in relation to their work as a mediator for the Duff and Phelps Limited v The Lord Advocate civil lawsuit.  The Authority disclosed some information and withheld the remainder under a number of exemptions in FOISA.  It argued that almost all of the information was subject to litigation privilege and the public interest favoured withholding the information.

The Commissioner investigated and found that the Authority had wrongly withheld some information under litigation privilege when it was already in the public domain, but he was satisfied that the Authority had complied with FOISA in withholding the remaining information.

Relevant statutory provisions

Freedom of Information (Scotland) Act 2002 (FOISA) sections 1(1), (2) and (6) (General entitlement); 2(1)(b) (Effect of exemptions); 36(1) (Confidentiality); 47(1) and (2) (Application for decision by Commissioner).

Background

1. On 12 November 2024, the Applicant made a request for information to the Authority. He asked for:

   1. The precise instruction given to Core Solutions Limited to provide mediation between Duff and Phelps and SGLD (Scottish Government Legal Directorate) in the contract detailed below;

   2. All further information supplied by SGLD to Core Solutions to enable them to complete their work.

The contract referred to is the contract awarded to Core Solutions Limited on 27 May 2022 in the context of the Duff and Phelps Limited v The Lord Advocate civil court action.

2. The Authority responded on 11 December 2024.  It withheld the information on the basis that it was subject to legal professional privilege and therefore exempt under section 36(1) of FOISA, finding that the public interest test did not favour disclosure.
3. On 12 December 2024, the Applicant wrote to the Authority requesting a review of its decision. The Applicant disagreed that the exemption applied.  He claimed that the information concerned a contract, and that it was not privileged information nor was it legal advice.  He noted that the sums involved were substantial (reputed to be £20 million plus £3 million in legal costs) and he argued that such expenditure should be accounted for.
4. The Authority notified the Applicant of the outcome of its review on 15 January 2025.  It maintained that almost all of the information captured by the request was subject to legal professional privilege and was therefore exempt under section 36(1) of FOISA.  It argued that the public interest test did not favour disclosure.  The Authority stated that it had identified some additional information (not identified originally) and it disclosed the contract award letter with some of the information in the letter redacted under sections 33(1)(b), 36(1) and 38(1)(b) of FOISA.
5. On 16 January 2025, the Applicant wrote to the Commissioner, applying for a decision in terms of section 47(1) of FOISA.  He stated his dissatisfaction that information had been withheld under section 36(1) of FOISA. Because of the large sums of public money involved, it was the Applicant’s view that the public interest lay in disclosure of this information.

Investigation

6. The Commissioner determined that the application complied with section 47(2) of FOISA and that he had the power to carry out an investigation.
7. On 24 February 2025, the Authority was notified in writing that the Applicant had made a valid application.  The Authority was asked to send the Commissioner the information withheld from the Applicant.  The Authority provided this information to the Commissioner, and the case was subsequently allocated to an investigating officer.
8. Section 49(3)(a) of FOISA requires the Commissioner to give public authorities an opportunity to provide comments on an application.  The Authority was invited to comment on this application and to answer specific questions.  These related to its searches for information and its reasons for withholding the information under section 36(1) of FOISA.

Commissioner’s analysis and findings

9. The Commissioner has considered all of the submissions made to him by the Applicant and the Authority.

The Authority’s change of position

10. During the investigation, the Authority changed its position in relation to some of the information it had previously withheld. Specifically, it disclosed all of section 1 on page 4 of Annex A of document 18 which, it acknowledged, was already in the public domain and should have been disclosed.
11. As the Authority withheld information from the Applicant that it accepted it had not been entitled to withhold, the Commissioner must find that the Authority failed to comply with section 1(1) of FOISA in this respect.

Scope of the investigation

12. As noted above, in this case the Applicant confirmed that he was only challenging the Authority’s reliance on section 36(1) of FOISA.
13. Given this, the Commissioner will only consider whether the Authority has correctly applied the exemption in section 36(1) of FOISA to the withheld information.  He will not consider the information that the Authority is withholding under section 33(1)(b) or 38(1)(b) of FOISA.

Section 36(1) - Confidentiality

14. Section 36(1) of FOISA exempts from disclosure information in respect of which a claim to confidentiality of communications could be maintained in legal proceedings.
15. Among the types of communication which fall within this category are those which are subject to legal professional privilege.  One aspect of legal professional privilege is litigation privilege, which covers documents created in contemplation of litigation (also known as communications post litem motam).
16. Communications post litem motam are granted confidentiality to ensure that any person or organisation involved in or contemplating a court action can prepare their case as fully as possible, without the risk that their opponent, or prospective opponent, will gain access to the material generated by their preparations.  The privilege covers communications at the stage when litigation is pending or in contemplation.
17. Whether a particular document was prepared in contemplation of litigation will be a question of fact, the key question generally being whether litigation was actually in contemplation at a particular time.
18. Litigation privilege will apply to documents created by the party to the potential litigation, expert reports prepared on their behalf and legal advice given (and sought) in relation to the potential litigation.  However, the communication need not involve a lawyer, and the litigation contemplated need never actually happen for the privilege to apply.  It will continue to apply after any litigation has been concluded.
19. There is a further matter to be considered, however, before the Commissioner can determine whether, or the extent to which, the section 36(1) exemption in FOISA is applicable in the circumstances of this case.
20. The information cannot be privileged unless it is also confidential.  For the section 36(1) exemption in FOISA to apply, the withheld information must be information in respect of which a claim to confidentiality of communications could be maintained in legal proceedings.   In other words, the claim must have been capable of being sustained at the time the exemption is claimed.
21. A claim of confidentiality cannot be maintained where, prior to a public authority's consideration of an information request or conducting a review, information has been made public, either in full or in a summary sufficiently detailed to have the effect of disclosing the advice.  Where the confidentiality has been lost in respect of part or all of the information under consideration, any privilege associated with that information is also effectively lost.

The Authority’s comments

22. The Authority explained that all of the material within scope of the request was related directly to civil proceedings in the Court of Session between Duff and Phelps Limited (now known as Kroll Advisory Limited) and the Lord Advocate.  The Authority acted on behalf of the Lord Advocate and engaged the services of a mediator (Core Solutions) to act as a mediator between the parties.  The Authority explained that the case ultimately settled following mediation.
23. The Authority provided the Commissioner with a detailed timeline of events of its involvement in the case.  It explained that the case was settled on 7 September 2022, and the court interlocutor bringing the case to an end was issued on 1 November 2022.
24. The Authority submitted that the correspondence and information exchanged between Core Solutions and itself was created solely because of the live litigation.  It stated that the communications were created on behalf of the Lord Advocate to instruct John Sturrock KC (Core Solutions) to act as a mediator between the parties to the live litigation and related to the instruction to mediate.
25. The Authority argued that the purpose of the mediation was two-fold: firstly, for the parties to attempt to negotiate a settlement to the court action; secondly, in the event that settlement was not achieved, to facilitate the carrying out of legitimate investigations into Duff and Phelps’ damages claim with a view to providing both legal advice to the Lord Advocate on the prospects of defending the action and potentially defending the action itself in court.  In the event, the mediation process directly informed legal advice to the Lord Advocate which ultimately led to the settlement of the court action.
26. The Authority acknowledged that much of the information falling within scope of the request comprised emails which discussed practical and/or logistical arrangements for the mediation but, nonetheless, it argued that all of the correspondence was subject to litigation privilege and, therefore, was exempt under section 36(1) of FOISA.

The Commissioner's view on section 36(1)

27. As noted above, whether a particular document was prepared in contemplation of litigation is a question of fact.  Having reviewed the withheld information and considered the Authority’s submissions, the Commissioner is satisfied that the withheld information was created in contemplation of litigation and that it has not been made public, either in full or in summary.
28. Consequently, the Commissioner accepts that the information withheld by the Authority under section 36(1) of FOISA is exempt from disclosure.

The public interest test - section 36(1)

29. The exemption in section 36(1) is a qualified exemption, which means that it is subject to the public interest test set out in section 2(1)(b) of FOISA.  
30. Having decided that the information is exempt under section 36(1), the Commissioner must go on to consider whether, in all the circumstances of the case, the public interest in disclosing the information is outweighed by the public interest in maintaining the exemption.

The Applicant's comments on the public interest

31. By way of background, the Applicant stated that £23 million of public money had been paid to a private firm without any adequate explanation of the reasons why. The Applicant explained that his request was related to the malicious prosecutions of two individuals (who were employed by Duff and Phelps) and that the Lord Advocate had given an adequate explanation for the liability of the Crown Office, in that case, for the large sums paid.  The Applicant could see no reason why the information he had requested should be treated differently.
32. The Applicant explained that he sought full disclosure of the information on the grounds that it was in the public interest to know why such a substantial sum of money was paid to Duff and Phelps when the company was not itself subject to any malicious prosecution.
33. The Applicant submitted that disclosure of the information would allow examination of whether, or not, liability was accepted by the Crown Office for third party damage caused by an unlawful act(s) against the two individual employees of the company.
34. The Applicant submitted that if the Authority had accepted liability in the Duff and Phelps case, then the public and the Scottish Parliament should be entitled to know this.
35. He argued that, if no liability had been accepted, the Authority should explain why such a large sum of public money was paid out.

The Authority’s comments on the public interest

36. The Authority recognised that there was a public interest in the information for reasons of general openness and transparency, to enhance scrutiny of decision-making processes, and to improve accountability and participation.  It recognised the public interest in this particular litigation, and in understanding how and why public money was being spent.
37. The Authority also acknowledged that there was a public interest in disclosing appropriate information for the effective oversight of public funds and to ensure the public purse was obtaining value for money.  
38. However, it submitted that appropriate information was published on the Public Contracts Scotland website relating to the contract and, more generally, there was accountability for the expenditure of public funds through Scottish Parliament Committees.  The Authority stated that the money spent on the litigation had already been published and reported on, and it claimed that this has enabled a degree of accountability and scrutiny.
39. The Authority explained that it also took into account the public interest in maintaining confidentiality of communications on administration of justice grounds.  In doing so, it considered whether disclosure of the information could inhibit the carrying out of legitimate investigations and paralyse the taking of remedial measures.
40. In terms of the information which was created for the sole purpose of defending litigation, it argued that the public interest in maintaining the litigation exemption outweighed the public interest in disclosing the information.
41. The Authority explained that the office of Lord Advocate has a range of functions associated with the maintenance of the rule of law and the proper administration of justice, including head of the systems of criminal prosecution and investigation of deaths.  The litigation brought against the Lord Advocate in this case was in respect of the exercise of that function.
42. The Authority argued that the courts have long recognised the strong public interest in maintaining the right to confidentiality of communications on administration of justice grounds.  In a freedom of information context, the Authority commented that the strong inherent public interest in maintaining legal professional privilege was emphasised by the High Court (of England and Wales) in the case of Department for Business, Enterprise and Regulatory Reform v Information Commissioner and O’Brien [2009] EWHC 164 (QB)[1].  The Authority noted that the Commissioner has considered the High Court’s reasoning to be relevant to the application of section 36(1) of FOISA in previous decisions
43. The Authority submitted that the public interest in maintaining the exemption outweighed that in disclosure of the information.  It claimed that there was a strong public interest in maintaining confidentiality of communications on administration of justice grounds. The Authority argued that this included allowing the Lord Advocate’s legal advisers to attempt to negotiate the settlement of a civil court action fully and frankly in confidence, in order to provide comprehensive legal advice to the Lord Advocate relative to the litigation proceedings.  
44. The Authority submitted that it was important that the Lord Advocate was able to attempt to settle the action and pursue her own investigations at a critical juncture in the case, in confidence.  It argued that disclosure of the information ran the risk of inhibiting the carrying out of legitimate investigations and paralysing the taking of remedial measures. 

The Commissioner's view on the public interest - section 36(1)

45. As the Commissioner has noted in a number of previous decisions, and as the Authority has referred to in its submissions, the courts have long recognised the strong public interest on maintaining the right to confidentiality of communications between legal adviser and client on administration of justice grounds.
46. The Authority also referred to the High Court (of England and Wales) ruling in the case of Department for Business Enterprise and Regulatory Reform v Information Commissioner and O'Brien [2009] EWHC 164 (QB).  Generally, the Commissioner will consider the High Court's reasoning to be relevant to the application of section 36(1) of FOISA.
47. In this case, the Commissioner accepts that there is a considerable, in-built, public interest in maintaining the ability of the Authority to receive full, unhindered legal advice.
48. The Commissioner acknowledges that there will be occasions where the significant in-built public interest in favour of withholding legally privileged communications may be outweighed by the public interest in disclosing the information.  For example, disclosure may be appropriate where (the list is not exhaustive):

    1. the privileged material discloses wrongdoing by/within an authority

    2. the material discloses a misrepresentation to the public of advice received

    3. the material discloses an apparently irresponsible and wilful disregard of advice

    4. the passage of time is so great that disclosure cannot cause harm.

49. Having examined the withheld information, the Commissioner notes that, although it is indeed captured by the request, the content of the information withheld does not actually address the matters raised by the Applicant in his application to the Commissioner.  In particular, he notes that the information does not provide an explanation of the sums involved nor does it address the question of liability.  The scope of the Applicant’s request does not extend to such information.
50. Furthermore, while it is likely that only a small amount of the withheld information would be of interest to the Applicant and to the general public, the Commissioner does not consider that any of the above categories would apply in this particular case.
51. The Commissioner accepts that the matters raised by the Applicant, namely the reasons for the expenditure of large sums of public money and the acceptance (or otherwise) of liability on the part of the Authority, are matters of strong public interest.  However, he cannot see that disclosure of any of the withheld information would contribute materially to addressing those legitimate concerns.
52. On balance, and after careful consideration, the Commissioner does not find the public interest in disclosure of this information is sufficiently compelling to outweigh the strong public interest in maintaining the confidentiality of communications between legal adviser and client.
53. The Commissioner is therefore satisfied that the Authority correctly withheld this information under section 36(1) of FOISA.

Decision 

The Commissioner finds that the Authority partially complied with Part 1 of the Freedom of Information (Scotland) Act 2002 (FOISA) in responding to the information request made by the Applicant. 

The Commissioner finds that by relying on section 36(1) of FOISA to withhold most of the information (excluding that which the Authority disclosed during the investigation), the Authority complied with Part 1 of FOISA.

However, by wrongly withholding a small amount of information until during the investigation, the Authority failed to comply with Part 1 (and, in particular, section 1(1)) of FOISA.

Given that the Authority disclosed this information during the investigation, the Commissioner does not require the Authority to take any action in respect of this failure in response to the Applicant’s application.

Appeal

Should either the Applicant or the Authority wish to appeal against this decision, they have the right to appeal to the Court of Session on a point of law only.  Any such appeal must be made within 42 days after the date of intimation of this decision.

Euan McCulloch 

Head of Enforcement 

29 October 2025