Privilege And Statements To A Third Party Regarding Solicitor/Client Instructions

The Court of Appeal held recently that confidentiality and legal advice privilege are not lost in documents containing or evidencing a client's instructions to its solicitor just because the solicitor makes a statement to a third party pursuant to those instructions. Raiffeisen Bank International AG v Asia Coal Energy Ventures Ltd & Anor [2020] EWCA Civ 11 is just one of a number of important recent rulings on privilege and is a welcome judgment for lawyers and their clients.

Background: application for disclosure and assertion of privilege

The case concerned an application by the claimant (the "Bank") for disclosure of documents containing the "irrevocable instructions" - or any variation or change thereto - that a law firm (the "solicitors") had received from their client, a company providing finance for a transaction (the "company"). The solicitors had referred to the "irrevocable instructions" in a written confirmation given by the solicitors to the Bank as part of an escrow arrangement (the "Solicitors' Confirmation").

The Bank asserted that the instructions were not confidential because the company had authorised the solicitors to make the statements contained in the Solicitors' Confirmation. Disclosure of the documents was resisted on the grounds of legal advice privilege. The application failed at first instance and the Bank appealed.

Judgment

Lord Justice Males gave the leading judgment dismissing the appeal, with which Lord Justice Lewison and Lord Justice Baker agreed.

He first addressed the question of whether the documents sought were relevant, or necessary to permit the case to be dealt with justly. He observed that he did not consider they were, as the real issue was the true construction of the Solicitors' Confirmation in its commercial context, which would be determined objectively and not by reference to any instructions the solicitors had, in fact, received.

Turning to privilege, he briefly rehearsed some of the key cases on legal advice privilege (Balabel v Air India [1988] 1 Ch 317; Three Rivers District Council v Bank of England (No.6) [2004] UKHL 48) to confirm that for it to apply (1) the communication between solicitor and client must be confidential and (2) for the purpose of legal advice (which includes a "continuum" of communications in which advice - as to what should be done in the relevant legal context as well as to the law - is sought or given when appropriate).

Confidentiality

The Bank, in submitting that...