A Year Of Privilege

Much has been written over the past year on developments or otherwise in the realm of legal professional privilege. As the summer vacation period is upon us, we thought it might be helpful to provide, by way of a round-up, a brief overview of some of the recent case law, flagging a number of themes to watch in the coming months.

Legal Professional Privilege - by way of a reminder:

Litigation privilege applies to: confidential communications between a client and their lawyer, or either of them and a third party, when litigation is in reasonable contemplation or has been commenced; and the communication is made for the dominant (although not necessarily sole) purpose of obtaining information or advice in connection with, or of conducting or aiding the conduct of, such litigation.

Legal advice privilege applies to: confidential communications between a client and their lawyer; which came into existence for the purpose of giving or seeking advice in a relevant legal context.

When is litigation in contemplation? The decision of the Court of Appeal in SFO v ENRC [2018] EWCA Civ 2006 in September 2018 provided welcome mitigation of the high bar for claiming litigation privilege that had been set in the much discussed first instance decision of Andrews J in that case. The Court of Appeal held that, on the facts in that case, litigation had been in reasonable contemplation even before internal investigations could reveal with certainty that such proceedings were likely, such that the disputed documents were covered by litigation privilege.

The Court of Appeal also held (contrary to the disquieting musings of Andrews J), in relation to dominant purpose, that: "legal advice given so as to head off, avoid or even settle reasonably contemplated proceedings is as much protected by litigation privilege as advice given for the purpose of resisting or defending such contemplated proceedings".

Of most interest though, perhaps, were the observations which the Court of Appeal made, in the context of considering both litigation privilege and legal advice privilege, about the difficulty of applying Three Rivers principles to large corporate or quasi corporate entities facing disclosure requests. In particular, the Court of Appeal appeared to acknowledge, obiter, the difficulties flowing from the fact that (unlike with an individual or small corporation) extensive internal investigations are often required before those currently understood to be able to cloak their communications in legal advice privilege (i.e. typically board members) can make themselves aware of, and take advice on the kind of relevant underlying facts which an individual facing any subsequent request for disclosure would obviously have had knowledge of without the need for any investigation. The Court of Appeal stated, however, that it was not open to it to depart from the decision in Three Rivers (No. 5) and that such questions could therefore only be resolved by the Supreme Court.

Will all communications concerning the settlement or avoidance of litigation be privileged? Another relevant Court of Appeal decision in WH Holding v E20 Stadium LLP [2018] EWCA Civ 2652, concerned a commercial dispute...