ISSUE 54 EWJ web - Journal - Page 35
As regards its application to litigation privilege
however, the Court rejected the Claimant’s submission:
“Its rationale does not, however, apply to litigation privilege.
Legal advice privilege is confined to communications which
the lawyer has with its client (either directly or through the intermediate agent of either), and does not extend to communications with third parties. It is necessary, therefore, to have a
rule for the purposes of legal advice privilege as to which natural persons qualify as 'the client' where the client is an entity
with legal personality, such as a company. By contrast, litigation privilege extends to communications with third parties,
and all legal and natural persons come within the scope of
that description; it encompasses any legal or natural person
who is not the client. It would include employees of the client,
communication with whom fell outside the scope of legal advice privilege in application of the Three Rivers (No 5) principle because they were not authorised to seek or receive legal
advice on behalf of the client.”
which the Defendant law firm’s clients were not
parties but were instead alleged victims.
The Court of Appeal noted that the case-law relating
to litigation privilege enshrined the principle that actual or potential litigants should be able to communicate with their legal advisers, and receive their legal
advice, in confidence and without fear that their correspondence may be relied on by their opponents or
by others.
When considering litigation privilege in relation to
non-parties, the Court of Appeal rejected the
Claimant’s submission that litigation privilege should
not apply to non-parties as they have no need for a
“safe space” to prepare their case.
The Court found that “provided the dominant purpose
ingredient is fulfilled, there seems no principled basis for limiting the scope of litigation to that to which the person is a
party”. The dominant purpose would require that the
maker of the communication had litigation in contemplation, but the litigation need not involve the
maker as a party. In the context of the present case,
the Court decided that litigation privilege could extend to victims of an alleged crime, where the victim
gathered evidence for use in claiming compensation
within criminal proceedings in which the victim was
not a party. The Court stated that to find otherwise
would produce unjust anomalies and to demonstrate
the point, it listed examples of other non-parties for
which it would be unjust to deny litigation privilege in
relation to litigation in which they were not parties but
had an interest in its outcome. These examples included liability insurers and litigation funders who
have assumed the conduct of proceedings in which
the party is the assured (or the funded litigant), members of a class of litigants in group litigation who are
not parties to a test case, parties behind a joint venture
company which is a litigant. Another example provided was that of a witness, or a person who is the subject of allegations in litigation in which they are not a
party, who wishes to obtain legal advice in connection
with providing evidence or becoming a party.
Legal advice privilege in investigations
The Court also considered legal advice privilege in the
context of investigations. The Claimant argued that a
large part of the defendant law firm’s work involved
investigation activities that required no legal skills or
analysis but were rather the types of activities ordinarily carried out by a non-lawyer, such as a policeman or a public prosecutor, such as interviewing and
providing evidence to the prosecution. In considering
this submission, the Court relied on a summary of the
relevant principles of when legal advice privilege will
apply to a particular communication expressed in the
case of R(Jet2.com) v Civil Aviation Authority [2020]
EWCA Civ 35.
The Court rejected the Claimant’s submission,
finding that legal advice privilege will apply where
lawyers are engaged to conduct an investigation, so
long as they are instructed for their legal expertise and
the investigation is conducted in a legal context:
“There can be no real doubt that the firm was appointed as a
law firm for its legal expertise. Such legal expertise extends
not only to advice on black letter law and its application to
particular facts, but also to the practical aspects of legal proceedings and preparations therefor, including advice as to
what evidence can and should be sought in the legal context
of its use in assessing liability and/or bringing proceedings.
The skills of a lawyer extend to "taking statements", "assembling the facts and handling the evidence", and "an exercise
in advocacy" … That is a legal context which will generally
cover investigatory work... the firm was engaged in the investigatory process to bring their lawyers' skills to that process and
to conduct it through lawyers' eyes.”
The Court did however emphasise that “Cases where
the dominant purpose test is satisfied but the party claiming
privilege is essentially a stranger to the litigation are likely to
be extremely rare; and whether there is an additional requirement of a sufficient interest in the proceedings in all cases is
better determined if and when it arises for decision.”
The “client” in litigation privilege
The Court also considered the Claimant’s submission
that the Three Rivers (No.5) determination of who the
“client” was for the purposes of legal advice privilege,
namely the finding that not all communications with
representatives of the client attracted legal advice privilege, but only those which took place with employees
and representatives who were specifically authorised
to seek and receive the advice, applied to litigation
privilege also. The Court noted that although this
finding in Three Rivers (No.5) had received considerable criticism, it was binding in relation to legal advice privilege on all courts below the Supreme Court.
EXPERT WITNESS JOURNAL
The Court then turned to whether the defendant law
firm had applied the test too widely. It was accepted by
the defendants that any document created as part of
a purely1 investigative role, divorced from their role as
lawyers, would not be privileged. Therefore, although
the defendant law firm’s approach to applying litigation advice privilege was that they had been instructed
as lawyers by their client, and their investigatory work
was generally carried out in that context, that did not
result in a blanket claim to legal advice privilege for all
documents resulting from their investigative work. For
example, they had disclosed several communications
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