The claimant sought, through judicial review, control over 8 emails sent by them to their lawyers. They claimed legal advice privilege, but the emails contained advice sent by their chartered accountants. The defendant had sought to use them in the course of an investigation of the claimant’s professional conduct.
Held: In fact the solicitors had received the emails whilst acting for the claimant’s employer, and not for the claimant in person. However, the criteria for claiming joint legal advice privilege were: ‘an individual claiming joint privilege with others in a communication with a lawyer, when there is no joint retainer, will need to establish the following facts by evidence:
i) That he communicated with the lawyer for the purpose of seeking advice in an individual capacity;
ii) That he made clear to the lawyer that he was seeking legal advice in an individual capacity, rather than only as a representative of a corporate body;
iii) That those with whom the joint privilege was claimed knew or ought to have appreciated the legal position;
iv) That the lawyer knew or ought to have appreciated that he was communicating with the individual in that individual capacity.
v) That the communication with the lawyer was confidential.’ These conditions were met.
Burnett J
[2011] EWHC 2583 (Admin)
Bailii
England and Wales
Citing:
Cited – Calley v Richards CA 8-Jul-1854
Communications between a person and his legal adviser, who had been a solicitor, but at the time of the communications had, without his knowledge ceased to practise, are privileged. The communication had reference to the validity of a will, and . .
Cited – Wheeler v Le Marchant CA 1881
Advice was given to the defendant trustee of the will of a Mr Brett in the course of its administration in the Chancery Division; for the purpose of that advice information was sought from both the former and the current estate-agent and surveyor. . .
Cited – Three Rivers District Council and others v The Governor and Co of the Bank of England (No 5) CA 3-Apr-2003
Documents had been prepared by the respondent to support a request for legal advice in anticipation of the Bingham enquiry into the collapse of BCCI.
Held: Legal advice privilege attached to the communications between a client and the . .
Cited – Rochefoucald v Boustead 1896
Two parties were engaged in a joint venture. The first invited the second to consult his solicitor but, in proceedings against both parties, waived any privilege in respect of what took place.
Held: The second party remained entitled to insist . .
Cited – CIA Barca de Panama SA v George Wimpey and Co Ltd CA 1980
Claim to Legal Professional Privilege Lost
Barca and Wimpey had been 50/50 joint venturers through the medium of a company called DLW which had provided services to oil companies in the Middle East, including the Aramco Group. Wimpey agreed to buy out Barca’s interest in DLW on terms which . .
Cited – In re Konigsberg (A Bankrupt) 1989
The court considered in the context of legal privilege the distinction between the disclosure of a document and its use at trial. Parties who grant a joint retainer to solicitors do not retain any confidence as against one another.
A bankrupt’s . .
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 . .
Cited – Pioneer Concrete (NSW) Pty Ltd v Webb 1995
(New South Wales) The defendant, Mr Webb claimed joint interest privilege in advice given pursuant to a retainer with C H Webb (the company). His argument had three bases. First, that the advice was given not only to the company as client, but also . .
Cited – Farrow Mortgage Services Pty Ltd (in Liq) v Webb and others 5-Jul-1996
Austlii (Court of Appeal of New South Wales) COMPANY LAW – s556 (1) Companies (NSW) Code; s592 (1) Corporations Law; liability of directors for debt of company – legal professional privilege – distinction between . .
Cited – Hellenic Mutual War Risks Association (Bermuda) Ltd v Harrison (‘The Sagheera’) ChD 1997
The dominant purpose test applies in relation to legal advice privilege in a different way from the way it applies in relation to litigation privilege. In legal advice privilege the practical emphasis is upon the purpose of the retainer. If the . .
Cited – Re Doran Constructions Pty Ltd (in liq) 27-Mar-2002
Austlii (Supreme Court of New South Wales) CORPORATIONS – winding up – liquidator’s examination – circumstances in which liquidator entitled to ask questions relating to legal advice given to company in . .
Cited – Gourand v Edison Gower Bell Telephone Co of Europe Ltd ChD 1888
Shareholders in the defendant company challenged its claim to legal privilege. They argued that when the directors obtained the advice in question, they did so on behalf of the company as a whole, and that they could not, therefore, assert privilege . .
Cited by:
See Also – Ford v Financial Services Authority and Another Admn 18-Apr-2012
. .
Lists of cited by and citing cases may be incomplete.
Legal Professions, Litigation Practice
Updated: 31 October 2021; Ref: scu.445379