Recent Decision On Various Aspects Of Privilege

There are several grounds on which a party in English legal proceedings can claim to be entitled to withhold the production of material in its possession to the other side. One of those grounds is legal professional privilege, which has two sub-categories: (a) legal advice privilege and (b) litigation privilege. Legal advice privilege can be claimed only if the communication takes place between a lawyer and his/her client. There is no such requirement for litigation privilege and communications between either a lawyer or his/her client and a third party can be caught by the privilege. For this reason, it is wider in scope than legal advice privilege. However, two pre-conditions must be met before litigation privilege can arise.

The communication must be made:

when litigation is in reasonable contemplation or has been commenced; and for the dominant purpose of obtaining information or advice in connection with, or of conducting or aiding the conduct of, such litigation. Various issues relating to both legal advice and litigation privilege were considered in a recent High Court decision. In Property Alliance Group Ltd v The Royal Bank of Scotland Plc1, the underlying dispute related to the manipulation of LIBOR (in respect of which the defendant has already reached certain settlements with various regulators). The claimant sought disclosure of various "high level" documents from the defendant. The defendant claimed privilege over several of these documents and the following issues arose:

1. Could legal advice privilege be asserted over documents produced by an Executive Steering Group ("ESG") set up by the defendant?

   Although not a sub-committee of the Board, it was "plainly an important committee operating at the highest levels". The claimant sought to rely on a statement by Richards J in Financial Services Compensation Scheme Ltd v Abbey National Treasury Services Plc2 that board minutes are a "common example" of a document which is "clearly not privileged".

   However, Birss J held that the key question was the precise nature of the role undertaken by the ESG. Here, it was likely that the ESG had reported factually about the outcome of investigations and so it was "hard to credit" that its sole purpose had been to provide legal advice, notwithstanding the involvement of the defendant's solicitors with the work of the ESG. Accordingly, the judge ordered inspection of these documents by the court in order for the issue of privilege in these...