Reserving Privilege For The Few: The High Court Confirms The Narrow Interpretation Of 'Client' For The Purposes Of Legal Advice Privilege

Following Three Rivers (No 5) [2003] EWCA Civ 474, the High Court has held that notes of interviews of employees, prepared as part of certain internal investigations by a bank's solicitors, for the purpose of enabling the bank to seek and receive legal advice are not protected by legal advice privilege. Central to the ruling was the finding that relevant employees did not fall within the definition of the "client" for legal advice privilege purposes. The Court also confirmed that English privilege rules should be applied in cases before the English court so that, even though the interview notes were likely to have been privileged as a matter of US law, they were not privileged in English proceedings.

The decision follows the recent judgment in Astex Therapeutics Ltd v Astrazeneca AB [2016] EWHC 2759 (Ch) in which Chief Master Marsh held that certain employees were not part of the "client" for legal advice privilege purposes, but with only a brief analysis on the point. In the present decision, Mr Justice Hildyard considered the question in much greater detail.

Background

The issues of privilege arose in the context of group litigation brought against RBS relating to a rights issue of shares in the bank announced in April 2008.

RBS attempted to resist disclosure and inspection of interview notes on the grounds that:

they were covered by legal advice privilege; with the exception of the interview notes taken by the Secretariat, the interview notes constituted lawyers' privileged working papers; the English court should apply US federal law under which the interview notes were said to be privileged; and the English court should exercise its discretion to withhold the documents on the basis that they are privileged under US law, even if English law governs the question of privilege. RBS made no claim to litigation privilege. The distinction between legal advice and litigation privilege is that the former applies to lawyer-client communications for the purpose of giving or receiving legal advice, whereas the latter applies where documents are prepared for the dominant purpose of litigation that is pending or is reasonably in prospect.

Decision

Mr Justice Hildyard rejected the claim to legal advice privilege on all grounds.

Legal Advice privilege It was common ground that the leading authority on legal advice privilege is the Court of Appeal decision in Three Rivers (No 5). In that case, the Court held that, for the purpose of assessing legal...