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06 Sep 18

Landmark Decision Clarifies Law on Legal Advice Privilege

September 6, 2018

In a key decision handed down this week, the Court of Appeal has concluded that legal advice provided before contemplation of court proceedings should be protected by privilege, in the same way as legal advice given during the course of court proceedings.

In The Director of the SFO v (1) Eurasian Natural Resources Corporation Ltd (2) The Law Society [2018] EWCA Civ 2006, the Court of Appeal overturned the original decision of Mrs Justice Andrews, in which she concluded that certain documents created by lawyers acting for the company, including notes and working documents, would not attract the protection of legal advice privilege because they were created before a prosecution by the Serious Fraud Office (SFO) had been contemplated. The Court of Appeal found that the judge was wrong, both in her interpretation of the facts and the law, and allowed the appeal.

The judgment also considered the principles set out in Three Rivers v The Governor & Company of the Bank of England , which held that communications between employees of a corporation and the corporation’s lawyers would not attract privilege unless that employee was tasked with seeking and receiving such advice on behalf of the client. Although the Court determined that it was not within their remit to formally reject the conclusion in Three Rivers (that would fall for consideration by the Supreme Court) and that they were bound by it, they commented that if it had been open to them to conclude that the decision was wrong, they would have been in favour of doing so.

The decision has been received positively by the Law Society, who appeared as Interveners in the appeal, with the Law Society President, Chrisina Blacklaws, stating: ‘The rule of law depends on all parties being able to seek confidential legal advice without fear of disclosure.’

For further information and more detail on the Law Society’s reaction to the judgment, click here.