Legal Advice Privilege

Thu, 12 Nov 2015

On 5th November 2015 the High Court confirmed that legal advice privilege is not restricted to communications that actually contain legal advice but may extend to factual summaries and meeting minutes where they are created in a legal advice context and form part of a continuum of communications between lawyer and client.

In the case Property Alliance Group Limited v Royal Bank of Scotland  [2015] EWHC 3187  Mr Justice Snowden provides a detailed analysis of the law relating to legal advice privilege [paras 18 to 26] and reiterates the public interest in ensuring that lawyer client communications remain confidential [paras 43 to 45].

Significantly Snowden J also rejected the Claimant’s submission that documents/communications should be disclosed in a redacted form removing any privileged material [paras 31-33].

Although only a first instance decision, the judgment will be helpful to those advising Corporates facing regulatory investigation. Previous case law has been interpreted to suggest that documents or communications that did not actually contain legal advice fall to be disclosed to regulatory or prosecution authorities and even where the documents/communications contain legal advice fall to be disclosed in a redacted form. 

From paragraph 44 Snowden J states-

…the policy justification for legal advice privilege cannot be limited to a need to encourage a client to make candid disclosure to his lawyer of all relevant matters without fear that what he reveals will later be disclosed to others without his consent.  Lawyers are often also given the task of investigating, or are in possession of, relevant information. The lawyer must be able freely to communicate that information to his client to enable the client to make a fully informed decision as to what further legal advice to obtain, and what to do.  When legal advice is then given, the lawyer must also be able to provide the client with an accurate record of the discussions and the decisions taken as a consequence.  If the lawyer was concerned that his communications might be disclosable to third parties without the client’s consent, he would be most unlikely to commit such matters to paper, with the inevitable risk of misunderstandings as to the facts, the legal advice given, and the decisions taken.  That could not possibly be said to serve the public interest in assisting clients to achieve an orderly arrangement of their affairs.

45.    Communications between a lawyer and his client in the context of a regulatory investigation are no different. There is a clear public interest in regulatory investigations being conducted efficiently and in accordance with law.  That public interest will be advanced if the regulators can deal with experienced lawyers who can accurately advise their clients how to respond and co-operate.  Such lawyers must be able to give their client candid factual briefings as well as legal advice, secure in the knowledge that any such communications and any record of their discussions and the decisions taken will not subsequently be disclosed without the client’s consent…

Click here to view a copy of the judgement.

Article written by No5 Chamber's barrister Alex Stein.

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