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 between client and legal adviser which lies at the heart of legal professional privilege.’ That requirement was supported by legal professional privilege, but privilege does not attach to a document obtained by a party or his adviser for the purpose of litigation if the document did not come into existence for that purpose. ‘The ratio of the decision [in Lyell v. Kennedy] is, I think, that where the collection of documents which a solicitor has copied or assembled betrays the trend of the advice which he is giving the client the documents are privileged.’ The Oregon manager’s letter in Anderson v Bank of British Columbia would be regarded as privileged as a letter written for the purpose of laying before a solicitor in order to obtain legal advice.
Bingham LJ said: ‘The expression ‘legal professional privilege’ is unhappy, because it falsely suggests a privilege enjoyed by the legal profession when in truth it is not the legal profession but the client who enjoys the privilege. It also suggests, surely wrongly, that a litigant in person is denied in preparing his litigation, the protection of secrecy which is enjoyed by a litigant who instructs a lawyer. The expression ‘litigation privilege,’ which has also and perhaps increasingly been used, avoids that objection but is itself open to the objection that it suggests a privilege pertaining to litigation, whereas it is clear that the privilege covers communications between the client and his agent and his professional legal adviser even when no litigation is pending or contemplated.’
He also said: ‘The doctrine of legal professional privilege is rooted in the public interest, which requires that hopeless and exaggerated claims and unsound and spurious defences be so far as possible discouraged, and civil disputes so far as possible settled without resort to judicial decision. To this end it is necessary that actual and potential litigants, be they claimants or respondents, should be free to unburden themselves without reserve to their legal advisers, and their legal advisers be free to give honest and candid advice on a sound factual basis, without fear that these communications may be relied on by an opposing party if the dispute comes before the court for decision. It is the protection of confidential communications between client and legal adviser which lies at the heart of legal professional privilege . . ‘
Bingham LJ
[1991] 1 WLR 607, [1991] 3 All ER 472
England and Wales
Citing:
Cited – Lyell v Kennedy (No 3) CA 8-Apr-1884
The plaintiff claimed to be entitled to land as purchaser from the heir-at-law of an intestate, who had died many years earlier. The land was in the possession of the defendant, and the central issue in the action was whether the defendant’s . .
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 – Brown and Another v Bennett and Others (No 3) ChD 17-Dec-2001
When a barrister was the subject of an application for a wasted costs order, it was proper to require him to disclose which non-privileged documents he had had sight of, provided that the request was not a way of trying to discover what was in . .
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 – Sumitomo Corporation v Credit Lyonnais Rouse Limited CA 20-Jul-2001
Documents had been translated from the Japanese, for the purposes of the litigation. The claimant refused disclosure, arguing that they were privileged, and protected from disclosure, having been prepared for the court proceedings.
Held: The . .
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 – Teal Assurance Company Ltd v WR Berkley Insurance (Europe) Ltd SC 31-Jul-2013
An international engineering company had several layers of professional indemnity insurance. The top later did not cover claims originating in the US or Canada. The several insurers now disputed apportionment of liability between them. The . .
Cited – X v Y Ltd (Practice and Procedure – Disclosure) EAT 9-Aug-2018
Iniquity surpasses legal advice privilege
PRACTICE AND PROCEDURE – Disclosure
PRACTICE AND PROCEDURE – Striking-out/dismissal
An Employment Judge struck out paragraphs of the Claimant’s claim as they depended on an email in respect of which legal advice privilege was claimed. . .
Lists of cited by and citing cases may be incomplete.
Legal Professions, Litigation Practice, Evidence
Updated: 20 January 2022; Ref: scu.180869