The enduring nature of legal advice privilege

Published: 4/11/2019

The Court of Appeal’s recent decision in Lee Victor Addlesee and others v Dentons Europe LLP [2019] EWCA Civ 1600, highlights the enduring nature of legal advice privilege in English law.

Summary

In this case, the Court of Appeal considered what happens to legal advice privilege attaching to communications between a company and its lawyers, once that company has been dissolved and the Crown has disclaimed all interest in its former property. The Court determined that documents of the dissolved company remained privileged. In doing so, the Court reiterated the long-established principle that once privilege attaches to a communication, that privilege is absolute and remains intact unless and until waived by a person entitled to do so or is overridden by statute. Privilege is not simply lost if there is no person to assert it when a disclosure request is made.

Facts

The Claimants were a group of investors who had invested in an investment scheme marketed by a Cypriot company, Anabus Holdings Ltd ('Anabus'). The lawyers acting for Anabus during the life of the investment scheme were Salans LLP ('Salans') (now Dentons Europe LLP, 'Dentons'). The investment scheme closed in 2010 leaving many of the investors unpaid. Anabus was subsequently dissolved in January 2016 pursuant to the provisions of Cypriot company law which provided that Anabus’ property (which included communications passing between Anabus and its solicitors, Salans) would be deemed vested in the Crown as bona vacantia. In relation to any rights relating to the client-solicitor communications, the Crown disclaimed all interest in them "without either asserting or waiving any legal professional privilege."

In May 2016, the Claimant investors brought an action against Dentons claiming that the scheme was fraudulent and that Salans had recklessly and/or negligently enabled the scheme and had induced investors to enter into it by affording the scheme respectability as its legal advisors.

The Claimant investors applied for disclosure of documents passing between Salans and Anabus. Dentons responded that it was unable to comply with the request for disclosure as the documents were privileged. Both parties accepted that the documents would have attracted legal advice privilege at the time they were created. The question for the Court was therefore whether the legal advice privilege subsisted notwithstanding the dissolution of Anabus.

First instance decision

At first instance, Master Clark held that legal advice privilege remained intact and refused the application. The key question before the Court was had the privilege been waived by the Crown when it disclaimed any interest in the files. It was determined that as the Crown had neither expressly asserted nor expressly waived privilege, it was clear that the Crown did not consider the effect of its disclaimer to constitute a waiver of privilege.

Master Clark distinguished the decision of the Upper Tribunal in Garvin Trustees Ltd v the Pension Regulator [2015] Pens LR 1 which held that legal advice privilege did not survive dissolution of a company because the dissolved company could no longer assert any right to privilege over its former documents which had passed to the Crown and in the absence of the Crown showing any interest in asserting the right to privilege, there was no obligation on the holder of the documents to maintain the privilege.

This case was distinguished from Garvin on the basis that in Garvin there was no possibility that the company could be restored to the company register, whereas in the case of Anabus, it was still a legal possibility. In light of this and the policy considerations underlying the principle "once privileged, always privileged," the court was compelled to maintain the privilege, unless and until there was no prospect of the privilege being enforced by the person entitled to it.

The Claimant investors appealed the decision.

The Appeal

The Appeal was heard by Lewison, Floyd and Hamblen LJJ. The Court of Appeal formulated the question before it as:

"whether, legal professional or legal advice privilege having attached to a communication by reason of the circumstances in which the communication was made, the communication remains privileged unless and until privilege is waived; or whether the privilege is lost if there is no person entitled to assert it at the time when a request for disclosure is made."

Held: The Court of Appeal unanimously dismissed the Claimant investors' appeal and refused to order disclosure of the privileged documents (albeit for different reasons to Master Clark).

Key policy reasons underpinning legal advice privilege

In reaching its decision, the Court of Appeal reflected on some of the key policy reasons underpinning legal advice privilege, namely:

  • It is a fundamental human right – Lord Hoffman in R (Morgan Grenfell & Co Ltd) v Special Commissioners of Income Tax [2002] UKHL 21 stated that "Legal professional privilege is a fundamental human right long established in the common law. It is a necessary corollary of the right of any person to obtain skilled advice about the law. Such advice cannot be effectively obtained unless the client is able to put all the facts before the adviser without fear that they may afterwards be disclosed and used to his prejudice."
  • It is required for the administration of justice - In R v Derby Magistrates’ Court, ex p B [1996] 1 AC 487, Lord Taylor stated that "a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege… is a fundamental condition on which the administration of justice as a whole rests."
  • It is in the public interest – "The public interest in a party being able to obtain informed legal advice in confidence prevails over the public interest in all relevant material being available to courts when deciding cases(Re L (A Minor) [1997] AC 16).
Key features of legal advice privilege

In considering the Claimant investors' appeal, the Court confirmed the key features of legal advice privilege:

  1. Timing of privilege – privilege attaches to communications at the time when they are made;
  2. Privilege does not need to belong to someone – a person must be entitled to the privilege at the time it is created but once the communication is created, the privilege attaches to the document itself;
  3. Once established, the privilege is absolute – the court referred to several authorities on this point, including: Legal advice privilege "requires that a lawyer must be able to give his client an absolute and unqualified assurance that whatever the client tells him in confidence will never be disclosed without his consent" (Lord Millett in B v Auckland District Law Society [2003] UKPC 38). Lord Scott in Three Rivers DC v Governor and Company of the Bank of England (No 6) [2004] UKHL 48 also stated that "if a communication or document qualifies for legal professional privilege, the privilege is absolute. It cannot be overridden by some supposedly greater public interest. It can be waived by the person, the client, entitled to it and it can be overridden by statute… but it is otherwise absolute;"
  4. Privilege survives death – Privilege does not cease on the death of a living person as privilege attaches to the document itself… "once the client ceases to exist, the only remaining question is whether there is anyone who has the right to waive it;"
  5. Duration of privilege – Privilege remains unless and until the client consents to its waiver. Absent a waiver the privilege remains (i.e. the lawyer's mouth "is shut forever" (Lord Taylor in R v Derby Magistrates’ Court, ex p B [1996] 1 AC 487).
  6. Burden of proof – it is not the immunity which must be asserted… it is the consent to disclosure which must be established.
The Crown's disclaimer

In addressing the question of whether or not the right to waive passed to the Crown and, if so, whether the Crown’s disclaimer amounted to a waiver, the Court held that:

  • either the right to waive privilege had not passed to the Crown – then there is no one who could have waived the privilege; or
  • if the right to waive privilege did pass to the Crown – it is clear that the Crown had not waived it i.e. the Crown’s disclaimer did not constitute a waiver. The disclaimer did not destroy the underlying property and therefore to the extent the Crown did disclaim its right, it cannot be treated as destructive of the legal advice privilege.
Concluding remarks

The Court of Appeal overruled Garvin and held that legal advice privilege, once established, would remain in existence unless and until it was waived by a person entitled to do so (even if no one exists who is entitled to waive it). Privilege will therefore survive the dissolution of a company.

This case serves as a useful reminder of the absolute and enduring nature of legal advice privilege which the Courts are, understandably, keen to protect. Parties should always therefore exercise caution if presented with a disclosure request for documents attracting legal advice privilege and should resist such a request unless there has been an express waiver or a finding of iniquity.

Sign up to our newsletter