Legal Advice Privilege

Legal advice privilege is a hugely valuable right but the recent decisions in Astex Therapeutics Limited v AstraZeneca AB [2016] EWHC 2759 (Ch) and The RBS Rights Issue Litigation [2016] EWHC 3161 (Ch) serve as a timely reminder of the limitations on legal advice privilege, and that the court retains ultimate discretion to delve behind the self-certified cloak of legal advice privilege to satisfy itself that privilege is properly claimed.

In particular, consideration needs to be given by large organisations as to which employees may be deemed "the client" to ensure that communications with in-house legal advisers are protected by legal advice privilege.

In The RBS Rights Issue Litigation, the High Court considered the application of legal advice privilege to notes and transcripts of interviews conducted by or on behalf of RBS (i) with employees and ex-employees; and (ii) as part of an investigation. RBS claimed that under English law (as well as US law - RBS was seeking to rely on US law to the extent that it provided greater protection with regard to privilege) any communication by an employee authorised to communicate with a legal adviser to seek legal advice for his employer was privileged. Disagreeing, Hildyard J dismissed RBS' claim to privilege and concluded that "the nature of the authorised communications and the purpose for which they took place combine to preclude the availability of legal advice privilege in this case". In taking this decision, the High Court applied the well-known decision of the Court of Appeal in Three Rivers No.5 which confirmed a narrow interpretation of what constitutes the "client" for the purpose of legal advice privilege. The High Court granted permission for a leapfrog appeal on this issue to the Supreme Court; however, this appeal will not now take place, as amendments to the claimants' case meant the disputed documents were no longer relevant to...