Court Of Appeal Clarifies The Ambit Of Litigation Privilege In Loreley

• Published date: 29 March 2023
• Subject Matter: Litigation, Mediation & Arbitration, Disclosure & Electronic Discovery & Privilege, Trials & Appeals & Compensation
• Law Firm: Norton Rose Fulbright
• Author: Mr Majdie Hajjar

Loreley Financing v Credit Suisse [2022] EWCA Civ 1484 concerns an appeal against the High Court's decision that the identity of those instructing the claimant's lawyers was not subject to privilege (See earlier article 'Can the identity of those instructing lawyers be protected by litigation privilege?'). The Court of Appeal dismissed the claimant's appeal, rejecting its argument that the identity of those giving instructions is inherently privileged.

Background

The Claimant was a special purpose vehicle with no employees. The issues in the case included arguments on limitation, and the question of whose knowledge could be credited to the Claimant was important. The Defendant sought numerous orders including one providing that the names of the individuals authorised to instruct the Claimant's lawyers 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.

The High Court held that whether the identity of those communicating with a lawyer is subject to litigation privilege depends on whether two requirements are met. First, whether the communication itself is privileged and, second, whether that privilege would be undermined by the disclosure of identity sought. The judge held that the identity was not privileged and the Claimant was ordered to identify all individuals who were or had been authorised to give instructions to its lawyers in relation to the proceedings.

Court of Appeal decision

In its appeal, the Claimant argued that the identity of persons who are authorised to give instructions to lawyers on behalf of a corporate client in the course of ongoing litigation is necessarily covered by litigation privilege and does not depend on whether privilege would be "undermined" by disclosure of the identity. The purpose of litigation privilege is to establish a "zone of privacy" around a party's preparation for litigation. The identity of those instructing the client's lawyers is within the scope of litigation privilege because disclosure might provide an advantage to the opposing party.

The Court of Appeal denied the appeal and agreed with the judge's approach. The court rejected the argument that litigation privilege protects information subject to a "zone of privacy" within which everything which happened was subject...