The English Law of Privilege: a Summary APRL: Paris Colin Passmore Senior Partner 14 April 2016

Legal advice privilege Protects the confidentiality of communications between lawyer and client created for the purpose of giving or receiving legal advice Applies whether or not litigation is pending or contemplated A document is subject to legal advice privilege if it is: a direct communication between the client and the lawyer (the lawyer acting in a professional capacity); confidential; and created for the purpose of obtaining or giving legal advice or assistance in a relevant legal context “Lawyer” under English law (but not EU law) includes in-house counsel but not e.g. tax advisers “Client” is very narrow: Three Rivers (No.5)

Litigation privilege A document is covered by litigation privilege if it is: confidential; a communication between the client or lawyer and a third party (eg factual or expert witness); made for the dominant purpose of use in litigation that, at the time it is made, is proceeding or reasonably contemplated; and made for the purpose of: seeking or giving advice in relation to such proceedings; or obtaining evidence to be used in such proceedings; or obtaining information leading to obtaining evidence to be used in such proceedings

Anticipating litigation For proceedings to be “reasonably contemplated”: They must be “reasonably in prospect” Accordingly, the party claiming privilege must show: “… he was aware of circumstances which rendered litigation between himself and a particular person or class of persons a real likelihood rather than a real possibility” This does not mean “… that there must have been a greater than 50% chance of litigation”

Legal advice privilege (part 1) Case study: Three Rivers – the facts Lord Justice Bingham Governor Solicitors and counsel Solicitors and counsel BIU Witnesses Which communications are privileged depends on who is the “client” Bank of England

Legal advice privilege (part 2) Who is the “client”? Three Rivers (No. 5) indicated that in non-contentious situations, only those persons employed by a company/entity to liaise with its lawyers are the “client” for the purposes of privilege Bingham Inquiry Unit (“BIU”) which liaised with lawyers and commissioned reports within the Bank was the “client” Communications with other employees to be treated as documents created by third parties – NOT privileged Distinction critical in investigations CITIC – Hong Kong Court of Appeal (June 2015)

Litigation privilege Adversarial proceedings: extends to all courts, employment tribunals and arbitration (where subject to English procedural law) Not fact gathering proceedings (not “investigative or inquisitorial”) Regulatory investigations? can start as investigatory and then become adversarial “litigation privilege is essentially a creature of adversarial proceedings’” In Re L (a minor) [1997] AC 16

European Commission investigation What is Privileged? Communications between a client and an independent EEA-qualified external lawyer made for the purpose of the client’s rights of defence Internal documents created exclusively for the purpose of seeking external legal advice in the company’s defence In-house Counsel Communications between the client and its internal lawyers on any subject are not privileged Unless the internal lawyer is merely reporting external legal advice Non-EEA Lawyers Communications from external non-EEA qualified lawyers are not privileged (AM&S) and (A-G Kokott in Akzo)

Preparatory documents Protection for Document prepared in order to seek external lawyer’s advice Need not be sent to the external lawyer Sole purpose test Must be unambiguously clear

Preparatory documents Justification “However, so that a person may be able effectively to consult a lawyer without constraint, and so that the latter may effectively perform his role as collaborating in the administration of justice by the courts and providing legal assistance for the purpose of the effective exercise of the rights of the defence, it may be necessary, in certain circumstances, for the client to prepare working documents or summaries, in particular as a means of gathering information which will be useful, or essential, to that lawyer for an understanding of the context, nature and scope of the facts for which assistance is sought” Contrast the position in England

PAG v RBS (Part 1 July 2015) RBS formed an Executive Steering Committee (ESG) which was at the centre of various RBS investigations re its LIBOR misconduct. CC played a key role in ESG work and attended all meetings. RBS claimed privilege over “high level” (sic) ESG communications “passing between [it] and its external and internal legal advisers for the purpose of taking and receiving legal advice on the regulatory investigations into [RBS] setting of LIBOR”:- Confidential memoranda in form of tables prepared by CC which updated ESG on progress, status and issues arising in underlying key investigations; Confidential notes/summaries drafted by CC concerning discussion between ESG and solicitors at ESG meetings. All marked “privileged & confidential” Findings: Clear legal context And while not every communication gave client direct legal advice, they fell within “continuum of communications” as per Balabel (CA, 1983)