Can The Identity Of Those Instructing Lawyers Be Protected By Litigation Privilege?

• Published date: 02 November 2022
• Subject Matter: Corporate/Commercial Law, Securities, Privilege
• Law Firm: Norton Rose Fulbright
• Author: Mr Majdie Hajjar

A recent decision by the High Court provides clarity on whether those instructing solicitors benefit from litigation privilege. In Loreley Financing (Jersey) No 30 Ltd v Credit Suisse Securities (Europe) Ltd [2022] EWHC 1136 (Comm), Credit Suisse Securities (Europe) Ltd (the Defendant) sought an order that the names of the individuals authorised to instruct Loreley Financing (Jersey) No 30 Ltd (the Claimant's) lawyers were not subject to litigation privilege. The question of who gave instructions on the Claimant's behalf to its lawyers was relevant to the Defendants' argument that the claims were time barred.

Background

The underlying claim related to the purchase of notes as part of a collateralised debt obligation in 2007; this claim therefore raised limitation issues. The Claimant was a special purpose vehicle with no employees, therefore the question of whose knowledge can be credited to the Claimant was important. The Defendant was seeking numerous orders including one providing that the names of the individuals authorised to instruct the Claimant were not subject to privilege. The Claimant accepted that the question of which individual gave instructions on its behalf to its lawyers might have some relevance to the Defendant's contention that the claims were time-barred, but asserted litigation privilege against the information sought. Litigation privilege applies to communications that were prepared for the dominant purpose of use in litigation that was contemplated at the time in question.

Decision

Mr Justice Robin Knowles CBE held that whether the identity of those communicating with a lawyer is subject to litigation privilege depends on whether two requirements are met:

• whether the communication itself is privileged; and
• if so, whether that privilege will be undermined by the disclosure of identity sought.

It does not make a...