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13th February 2017

It’s a privilege

A lawyer’s client enjoys certain ‘privileges’. These legal privileges derive from the ‘confidentiality’ that lies at the heart of the client-lawyer relationship. You expect that what passes between you and your lawyer to be just that – between the two of you and not open to the curious eyes of others.

That expectation is substantially fulfilled by the cloak that the English law of ‘privilege’, casts over communications between a lawyer and his or her client which have come into existence for the purpose of giving or receiving legal advice (legal advice privilege) and documents which come into existence with a view to existing or anticipated litigation (litigation privilege). Whilst, when established, there are very few grounds on which the right can be challenged, the qualifications for protection are not generous. The tramlines for the privileges, especially legal advice privilege, are narrow (Three Rivers District Council and others v The Governor & Company of the Bank of England [2004] UKHL 48).

A couple of things to watch for with legal advice privilege in particular:-

  • It has to be ‘a Lawyer’: At the heart of the privilege is the principle that you should have uninhibited access to a lawyer’s professional skill and judgment. It follows therefore that a communication between you and a professional who is not a lawyer, but to whom you might go for and who may offer you an opinion on the law does not have the protection. Only communications with members of the legal profession are protected (R (Prudential PLC and another) v Special Commissioner of Income Tax and another [2013] UKSC1). Other professionals who are experts in their own fields – for example, accountants, tax advisers, planning consultants etc. (where they are not also a member of the legal profession) are outside the class, regardless of how well those professionals know the regulations governing their respective areas of expertise.
  • Not everyone in a client organisation is ‘the Client’: If it is an individual seeking advice, it is easy – the client is the client is the client. The position is not so straightforward where an organisation is involved however. Here, ‘the client’ is limited to those employees who are actually authorised by the organisation to seek and receive the legal advice in question. The fact that the person the lawyer is communicating with happens to be an employee of a client company for instance -even where that person is in a senior or a relevant management position - does not by dint of that employment or position automatically cast the cloak of privilege over what passes between them. What triggers the protection is not just the purpose of the communication (which is essential for it to qualify), but also the authority of the employee in the relationship with the lawyer. So, if the company has given an employee the general job of getting legal advice for the company or has charged the relevant individual to get an opinion from the lawyer to meet a specific need that has arisen, then that person is ‘the client’ (Re. the RBS Rights Issue Litigation [2016] EWHC 3161 (Ch)). Others are outside the class.

 

So, it really is ‘a privilege’.

For further information on this subject contact Dominic Hopkins on 01604 233233 or click here to email Dominic.