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 dominant purpose of the retainer is the obtaining and giving of legal advice, then, although it is in theory possible that individual documents may fall outside that purpose, in practice it is unlikely.
Rix J said: ‘Parties who grant a joint retainer to solicitors of course retain no confidence as against one another: if they subsequently fall out and sue one another, they cannot claim privilege. But against all the rest of the world, they can maintain a claim for privilege for documents otherwise within the ambit of legal professional privilege; and because their privilege is a joint one, it can only be waived jointly, and not by one party alone. These principles are, I believe, well established: see for instance Rochefoucauld v. Boustead (1896) 65 L.J.Ch. 794, Cia Barca de Panama S.A. v. George Wimpey Y Co. Ltd., [1980] 1 Lloyd’s Rep. 598, In Re Koninsberg (A Bankrupt), [1989] 1 W.L.R. 1257.’
Rix J said: ‘In legal advice privilege, I would suggest, the practical emphasis is upon the purpose of the retainer. If the dominant purpose of the retainer is the obtaining and giving of legal advice, then although it is in theory possible that individual documents may fall outside that purpose, in practice it is unlikely. If, however, the dominant purpose of the retainer is some business purpose, then the documents will not be privileged, unless exceptionally even in that context advice is requested or given, in which case the relevant documents probably are privileged.’ and ‘In the present case the retainer is said to be for the purpose of investigating and advising on the casualty. In my judgment that meets the dominant purpose test, for the purpose of investigation is inseparable from the purpose of advice.’
Judges:
Rix J
Citations:
[1997] 1 Lloyds Rep 160
Jurisdiction:
England and Wales
Citing:
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 by:
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 – Ford, Regina (on The Application of) v The Financial Services Authority Admn 11-Oct-2011
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 . .
Lists of cited by and citing cases may be incomplete.
Legal Professions
Updated: 27 April 2022; Ref: scu.180872
