Court Of Appeal Confirms Identity Of Those Instructing Lawyers Not Generally Protected By Litigation Privilege

• Published date: 22 November 2022
• Subject Matter: Corporate/Commercial Law, Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Privilege
• Law Firm: Herbert Smith Freehills
• Author: Ms Anna Pertoldi and Maura McIntosh

The Court of Appeal has held that the identity of those instructing lawyers on behalf of a corporate client are not generally protected by litigation privilege: Loreley Financing (Jersey) No 30 Ltd v Credit Suisse Securities (Europe) [2022] EWCA Civ 1484. In doing so it largely agreed with the reasoning of the High Court, as summarised in our blog post on that decision.

The court rejected the notion that litigation privilege protects all information falling within a "zone of privacy" around a party's preparation for litigation. Instead, it emphasised that privilege attaches to communications (including secondary evidence of those communications) rather than information or facts divorced from them. Accordingly, there is no general principle that the identity of those giving instructions to a lawyer for the purposes of litigation will be protected.

The court recognised an exception, where the disclosure of the relevant individual's identity would inhibit candid discussion with the lawyer and therefore affect the client's ability to prepare its case - eg because it might tend to reveal something about the content of the communication with the lawyer or the litigation strategy being discussed. But that would have to be explained as the basis for the claim to privilege.

Background

The court considered whether the identity of individuals authorised to give instructions in relation to the proceedings on behalf of the claimant, a special purpose vehicle with no employees whose directors are supplied by a professional services company, were protected by litigation privilege. This information was said to be relevant to the question of whose knowledge could be attributed to the claimant for limitation purposes.

The High Court held that whether the identity of a person communicating with a lawyer is privileged depends on two requirements: (i) whether the communication is privileged; (ii) whether that privilege would be undermined by the disclosure of identity sought. It held that those requirements were not met in the present case, and so the identities of those authorised to give instructions on behalf of the claimant were not protected by privilege.

The claimant appealed, arguing that the identity of those authorised to give instructions to solicitors on behalf of a corporate client in the course of litigation is necessarily covered by litigation privilege, as it falls within a "zone of privacy" established by the privilege, and does not depend on whether privilege...