Date 1 January 2006
It has long been the case that communications passing between client and solicitor are “privileged” from inspection by third parties, provided they are created for the purpose of obtaining legal advice. This principle is extended if the communications have come into existence after litigation is contemplated or commenced, and they are made with a view to litigation in which case the communications between the client and/or the solicitor and a third party (e.g. a surveyor) will also be “privileged” from production.
This important legal principle is policy based - few people would disclose confidential information for the purpose of obtaining legal advice if there was a possibility that it could then be directed to a claimant or defendant at the disclosure stage of proceedings.
Notwithstanding its significance, the principle has recently been thrown into question by the Court of Appeal in a case known as Three Rivers (Three Rivers DC and Others v Bank of England). The Court decided that “presentational” advice was not covered by privilege, and that communications should only be protected where they related to a client’s “legal rights and obligations” (rather than where they related to, in this instance, the client’s need to present material to the Bingham inquiry). The Court further held that privilege only protected those communications which had passed between specific individuals who were instructing the solicitors. It did not protect documents generated by other employees of the client despite some such documents having been generated for submission to the solicitors. Litigation was not in contemplation and therefore the extended type of litigation privilege could not assist.
Apprehensions emerged: did this mean that all communications not relating to “rights and obligations” escaped the “cloak” of privilege? And who within a company would be categorised as the “client” if employees’ documents were now treated in the same way as those from third parties?
The case went to the House of Lords in 2005. Although the first point on presentational advice was reversed, the Lords declined to comment on whether companies should ensure that all communications with their lawyers are streamed through specific individuals in order to prevent such communications losing their privileged status. Needless to say, it is a matter which remains uncertain and clients taking legal advice should be wary of how communications are passed between themselves and their lawyers.
Tips to ensure that your documents remain privileged:
- Keep documents and papers well organised so that you can easily establish which relate to a specific topic on which you have received legal advice
- Where possible, try and ensure that one or two officers of your firm or company are nominated to deal directly with solicitors when taking legal advice;
- If you are communicating with internal colleagues or employees on a matter which may lead to you obtaining legal advice, it may be helpful to cc the emails or memos to your solicitors from an early stage.
For further advice or guidance, please contact Robert Ryall on 01727 798092 or by email at robert.ryall@salaw.com.
© SA LAW 2006
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