High Court Consideration Of Legal Privilege

The High Court judgement in R (Stewart Ford) v Financial Services Authority [2012] EWHC 997 (Admin) has emphasised the importance of legal professional privilege and that it does work when properly implemented, but also demonstrated that winning the legal argument does not necessarily provide the desired outcome. The court ruled that privileged material should not have been used by the FSA in issuing a warning notice, but nonetheless refused to overturn the warning notice simply by virtue of the inclusion of that material. Keydata Investment Services Limited was in the business of providing marketing and sales information and products to independent financial advisers. The Financial Services Authority (FSA) had reason to believe that certain FSA rules had been contravened by Keydata with regards to the way they were selling and marketing a particular product. As a result, the FSA carried out investigations on Keydata. Irwin Mitchell advised Keydata as a company and a number of their executives in a personal capacity throughout the investigation process. While the investigation was ongoing, Keydata was put into administration. Using their compulsory powers, the FSA obtained a substantial volume of data from Keydata's administrators, including Irwin Mitchell legally privileged emails and attachments. The FSA obtained express confirmation from the administrators that Keydata waived its legal professional privilege in relation to such documentation. As a result of the investigations the FSA's Regulatory Decisions Committee (RDC) issued a warning notice against the claimant in this case, who was one of the individual executives who had been advised by Irwin Mitchell in a personal capacity. The claimant's challenge was formed on the basis that the emails in question were subject to joint legal privilege shared between Keydata itself and the executives who had been personally advised by Irwin Mitchell, and so should not have been used by the FSA when drafting the warning notice. In the substantive judgement the court agreed that joint interest privilege did apply as Irwin Mitchell were acting for the executives personally as well as for Keydata, therefore the FSA had acted unlawfully in using material that was subject to legal professional privilege. Despite the claimant's victory, the result was bittersweet. The claimant, Mr Ford, argued that the warning notice to be quashed as it referred to privileged material; and that any FSA member of staff...