When considering claims for legal professional privilege, the court should acknowledge the ‘continuity of communications’. However, where the traditional role of a solicitor had expanded, the scope of legal professional privilege should not be extended with it. ‘Although originally confined to advice regarding litigation, the privilege was extended to non-litigious business. Nevertheless, despite that extension, the purpose and scope of the privilege is still to enable legal advice to be sought and given in confidence. In my judgment, therefore, the test is whether the communication or other document was made confidentially for the purpose of legal advice. Those purposes have to be construed broadly. Privilege obviously attaches to a document conveying legal advice from solicitor to client and to a specific request from the client for such advice. But it does not follow that all other communications between them lack privilege. In most solicitor and client relationships, especially where a transaction involves protracted dealings, advice may be required [as] appropriate on matters great or small at various stages. There will be a continuum of communication and meetings between the solicitor and client . . Where information is passed by the solicitor or client to the other as part of the continuum aimed at keeping both informed so that advice may be sought and given as required, privilege will attach. A letter from the client containing information may end with such words as ‘please advise me what I should do’. But, even if it does not, there will usually be implied in the relationship an overall expectation that the solicitor will at each stage, whether asked specifically or not, tender appropriate advice. Moreover, legal advice is not confined to telling the client the law; it must include advice as to what should prudently and sensibly be done in the relevant legal context.’ However: ‘ to extend privilege without limit to all solicitor and client communication upon matters within the ordinary business of a solicitor and referable to that relationship [would be] too wide.’ And ‘Once solicitors are embarked on a conveyancing transaction they are employed to ensure that the client steers clear of legal difficulties, and communications passing in the handling of that transaction are privileged (if their aim is the obtaining of appropriate legal advice) since the whole handling is experience and legal skill in action and a document uttered during the transaction does not have to incorporate a specific piece of legal advice to obtain that privilege.’
Judges:
Taylor LJ, Parker LJ and Lord Donaldson MR
Citations:
[1988] Ch 317, [1988] ANZ Conv R 417, [1988] 2 All ER 246, [1988] 2 WLR 1036
Jurisdiction:
England and Wales
Citing:
Cited – Anderson v Bank of British Columbia CA 1876
Litigation was threatened against an English bank concerning the conduct of an account kept at the branch of the bank in Oregon. The English bank’s London manager thought it necessary to ascertain the full facts and cabled the branch manager in . .
Cited by:
Cited – United States of America v Philip Morris Inc and others QBD 10-Dec-2003
Witness orders were sought in respect of professionals resident in England to support litigation in the US. They objected on the ground that the terms of the order sought suggested improper behaviour, and that an order would anticipate breach of . .
Cited – Three Rivers District Council and others v The Governor and Co of the Bank of England (No 6) CA 1-Mar-2004
The Bank of England had sought assistance from its lawyers to prepare for a private non-statutory enquiry. The claimant sought disclosure of that advice. The defendant bank claimed legal professional privilege.
Held: Not all advice given by a . .
Cited – Regina on the Application of Davies (No 2) v HM Deputy Coroner for Birmingham CA 27-Feb-2004
The claimant appealed against a costs order. She had previously appealed against an order of the High Court on her application for judicial review of the inquest held by the respondent.
Held: The coroner, and others in a similar position . .
Cited – United States of America v Philip Morris Inc and Others and British American Tobacco (Investments) Ltd CA 23-Mar-2004
The defendants appealed orders requiring them to produce evidence for use in the courts in the US.
Held: It was the pleasure and duty of British courts to respond positively to a letter of request. Public interest required that a court should . .
Cited – Regina v Derby Magistrates Court Ex Parte B HL 19-Oct-1995
No Breach of Solicitor Client Confidence Allowed
B was charged with the murder of a young girl. He made a confession to the police, but later changed his story, saying his stepfather had killed the girl. He was acquitted. The stepfather was then charged with the murder. At his committal for trial, . .
Cited – Three Rivers District Council and others v Governor and Company of the Bank of England (No 6) HL 11-Nov-2004
The Bank anticipated criticism in an ad hoc enquiry which was called to investigate its handling of a matter involving the claimant. The claimant sought disclosure of the documents created when the solicitors advised employees of the Bank in . .
Cited – Nederlandse Reassurantie Groep Holding NV v Bacon and Woodrow Holding 1995
A Dutch corporation had obtained advice from lawyers and other professionals before purchasing share capital in insurance companies. After the purchase the corporation discovered that it was exposed to large losses and began proceedings in . .
Cited – Curtis v Curtis CA 8-Mar-2001
The mother sought leave to call in evidence in proceedings for contact, an affidavit sworn by the father’s previous solicitors when applying to be removed from the record, which related the contents of telephone calls from the father to their . .
Cited – Prudential Plc and Another, Regina (on The Application of) v Special Commissioner of Income Tax and Others CA 13-Oct-2010
The court was asked whether advice given by an accountant could be protected against disclosure by legal professional privilege. The company had taken advice from its accountants, and objected to disclosure of that advice to the tax authorities . .
Lists of cited by and citing cases may be incomplete.
Legal Professions
Updated: 16 May 2022; Ref: scu.188692