High Court Finds Identity Of Those Giving Instructions To Lawyers Not Protected By Litigation Privilege

• Published date: 22 June 2022
• Subject Matter: Litigation, Mediation & Arbitration, Disclosure & Electronic Discovery & Privilege, Trials & Appeals & Compensation
• Law Firm: Herbert Smith Freehills
• Author: Ms Anna Pertoldi and Maura McIntosh

In a recent decision, the High Court has held that a claimant could not claim litigation privilege in respect of the identities of the individuals giving instructions to its lawyers on its behalf in relation to the litigation: Loreley Financing (Jersey) No 30 Ltd v Credit Suisse Securities (Europe) Ltd [2022] EWHC 1136 (Comm).

The court found that whether the identity of a person communicating with a lawyer is privileged depends on whether: (i) the communication itself is privileged; and (ii) that privilege will be undermined by the disclosure of the person's identity. That will depend on the facts of each case. In the present case the court found there was no evidence to show that the privilege would be undermined, and therefore the identity information was not protected by privilege.

The decision is of interest as a reminder that (as found in previous cases) the identity or contact details of the individuals instructing a lawyer may be privileged in some circumstances, but it suggests that those circumstances are likely to be rare. The court rejected a broader proposition that, in the context of litigation privilege, the identity of those providing instructions is protected simply because it falls within a "zone of privacy" around the preparation of a party's case.

It is also of some (though perhaps largely academic) interest in finding that lawyer/client communications relating to litigation can be covered by litigation privilege, even if they are also covered by legal advice privilege. This point has been the subject of some debate - though, at least arguably, the orthodox position is that the two sub-heads of privilege do overlap in this way.

Background

The underlying claim concerns the claimant's purchase of notes from the defendants as part of a collateralised debt obligation (CDO) transaction in 2007. The claim raises limitation issues, including what matters the claimant knew or could with reasonable diligence have discovered at particular dates.

The claimant is a special purpose vehicle with no employees, and so a relevant question is whose knowledge can be attributed to the claimant for limitation purposes. In that context, the defendant made a request for further information under CPR Part 18 as to whether certain individuals at a third party company (which was, among other things, a creditor of the claimant company) were providing instructions to the claimant's solicitors in relation to the litigation.

The claimant recognised that this...