Privilege – Updates From The Court of Appeal

The principle of ‘privilege’ is something that all legal professionals and laypeople will be aware of to one degree or another. You may have heard it mentioned in business, in the media or in a TV legal drama, where it may have been referred to as ‘lawyer-client confidentiality’. But what is ‘privilege’ and how does it affect you?

In the main, there are two types of privilege:

• Legal Professional Privilege: which covers documents created for the purpose of obtaining and providing legal advice; and
• Litigation Privilege: which are documents created for and/or in contemplation of future litigation.

If you successfully claim privilege over a document (or part of it), then you do not have to disclose that document (or part of it) to other parties in a dispute. Therefore, it is an important legal principle to be aware of in a dispute;

Over the past 12 months, the Court of Appeal has handed down judgment on seven cases in relation to privilege. Such a number of cases, in such a space of time, on a particular topic and before the Court of Appeal is unprecedented. Below we outline the main talking points from each of these cases.

• The Court has confirmed that a beneficiary of a trust enjoys joint privilege with the trustees of the trust in relation to any advice taken by the trustees for the benefit of the trust (Dawson-Damer v Taylor Wessing LLP [2020]);
• Even if an e-mail between a client and their solicitor is held to be privileged, an otherwise non-privileged document will not automatically become privileged simply by attaching it to that privileged e-mail (Sports Direct International Plc v Financial Reporting Council [2020]);
• Unless the relevant statute ordering disclosure to a regulatory body states otherwise, such disclosure to a regulatory body does not overrule the principle, and protection afforded by, Legal Professional Privilege (Sports Direct International Plc v Financial Report Council [2020]);
• For a document to be afforded Legal Professional Privilege, it must have been created for the dominant purpose of obtaining or giving legal advice (Civil Aviation Authority v R Jet2 [2020]);
• A statement by a solicitor to a third party confirming its client’s instructions does not result in the loss of confidentiality in the document(s) containing or evidencing those instructions (Raiffeisen Bank International AG v Asia Coal Energy Ventures Ltd and another [2020]);
• Documents remain subject to Legal Professional Privilege unless and until waived by the client who has the benefit of the privilege, including when that client is a company that has been dissolved (Addlesse and others v Dentons Europe LLP [2019]);
• The iniquity principle, if successfully argued, strips a document of its privileged status and protection if the document came into being for the purpose of furthering criminal or fraudulent design. The Court indicated that the principle was confined to dishonest acts and intentions (Curless v Shell International Ltd [2019]);
• The Court affirmed the well-established principle that a settlement agreement resulting from without prejudice negotiations is not covered by without prejudice privilege (BGC Brokers LP v Traditions (UK) Ltd and others [2019]);
• If a privileged e-mail is incorporated into a settlement agreement to allow a party to rely on the warranties provided in the e-mail, then that e-mail will lose its privileged status (BGC Brokers LP v Traditions (UK) Ltd and others [2019]).

Conclusion

Privilege might be one of the most fundamental and well-established principles of English and Welsh law, but it is not immune from judicial scrutiny and change.

With this in mind, if you have an ongoing issue with a third party and have queries on whether you can claim privilege over the documentation you hold, do not hesitate to get in contact with our team below.