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 solicitor where proceedings were not contemplated, but did not attach to supporting documents. Privilege stemmed from the confidential relationship of client and solicitor and attached only to communications between the client and solicitor. The shift in focus from the dominant purpose of the document to the dominent purpose of the retainer was doubted. Documents prepared for the enquiry rather than as part seeking legal advice were not privileged.
Judges:
Lord Justice Sedley The Master Of The Rolls Lord Justice Longmore
Citations:
[2003] EWCA Civ 474, Times 19-Apr-2003, Gazette 12-Jun-2003, [2003] 3 WLR 667, [2003] QB 1556, [2003] CPLR 349, [2003] All ER (D) 59
Links:
Jurisdiction:
England and Wales
Citing:
Cited – Greenhough v Gaskell CA 1833
The question arose whether the defendant solicitor, sued for fraudulently concealing that his client was insolvent and thereby inducing the plaintiff to issue a promissory note on the client’s behalf, could claim privilege in respect of . .
Cited – In Re L (A Minor) (Police Investigation: Privilege) HL 22-Mar-1996
A report obtained for Children Act proceedings has no privilege against use in evidence. Such proceedings are in the nature of inquisitorial proceedings. Litigation privilege was not applicable in care proceedings and a report prepared may be given . .
Cited – Southwark and Vauxhall Water Company v Quick CA 1878
The water company sued its former engineer. Anticipating the action, documents were prepared for the company’s solicitor’s advice, though one (a shorthand transcript of a conversation between a chimney sweep employed by the company and the company’s . .
Cited – Ventouris v Mountain CA 1991
It is in the interests of the state which provides the court system and its judges at taxpayers’ expense that legal advisers should be able to encourage strong cases and discourage weak cases. ‘It is the protection of confidential communications . .
Cited – Re Highgrade Traders Ltd CA 1984
The court rejected a claim for legal advice privilege in relation to reports commissioned by an insurance company after a suspected arson. The documents were reports prepared by third parties rather than employees of the company. After considering a . .
Cited – Price Waterhouse v BCCI Holdings (Luxembourg) SA CA 1992
A claim for legal advice privilege was rejected for reports written by accountants both when the accountants were independent and when they reconstituted themselves as a committee of the client. However, legal advice privilege attaches to all . .
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 by:
Cited – Hollins v Russell etc CA 22-May-2003
Six appeals concerned a number of aspects of the new Conditional Fee Agreement.
Held: It should be normal for a CFA, redacted as necessary, to be disclosed for costs proceedings where a success fee is claimed. If a party seeks to rely on the . .
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 – 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 – USP Strategies Plc and Another v London General Holdings Ltd and others ChD 1-Mar-2004
In the course of litigation, in the course of which summaries of advice given to the defendants by their lawyers was produced in evidence. They sought that it be struck out as protecetd by legal privilege.
Held: Though summarised, 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 . .
Cited – Astex Therapeutics Ltd v Astrazeneca Ab ChD 8-Nov-2016
The parties had agreed to work tgether in the development of new drugs, but came to dispute whether certain projects were subject to the agreement. The claimant sought details of the defendant’s internal documents justifying that conclusion. The . .
Lists of cited by and citing cases may be incomplete.
Legal Professions, Litigation Practice
Updated: 07 June 2022; Ref: scu.180588