Judge considers the scope of legal advice privilege

http://www.bailii.org/ew/cases/EWHC/Ch/2015/3187.html

The underlying dispute in this matter relates to the manipulation of LIBOR. The defendant had set up a stand-alone committee, the Executive Steering Group ("ESG") to deal with this matter. The ESG had liaised with external lawyers and the defendant claimed legal advice privilege in respect of certain "High Level Documents" which had been prepared by the external lawyers (broadly, updates on the progress of regulatory investigations and summaries of discussions between the defendant and its lawyers at meetings). The claimant objected, arguing that not every communication between a lawyer and client is privileged, and Weekly Update 21/15 reported the decision by Birss J that the documents should be inspected by another judge in order to determine whether privilege could be claimed in respect of them. Snowden J has now completed that inspection and held as follows:

  1. The external lawyers had been engaged by the defendant in "a relevant legal context", since the defendant was facing regulatory investigations in a number of countries which could have led to damage to the defendant.
  2. The High Level Documents had formed part of "a continuum of communications and meetings" between the external lawyers and the defendant, the object of which was to give and receive legal advice. They kept the defendant informed of factual developments, so that advice could be sought and obtained, as required. Furthermore, and importantly, the lawyers had given their impressions and responded to questions/given suggestions.  Even if the documents had not expressly referred to legal advice, they were nonetheless part of the ""necessary exchange of information of which the object is the giving of legal advice as and when appropriate". It is therefore quite clear that the communication of information between a lawyer and client can be privileged, provided that it is information that is communicated in confidence for the purposes of the client seeking, and the lawyer giving, legal advice. The test is one of relevance and purpose: the source of the information makes no difference".

The claimant sought to argue that it would be illogical to hold that eg meeting minutes prepared by an employee of the defendant would not be privileged, but those prepared by an external lawyer would be (relying on a comment by Richards J in FSCS v Abbey National (see Weekly Update 47/07) that board minutes are a "common example" of a document which is "clearly not privileged". Snowden J held that there could be situations where minutes prepared by a lawyer and sent to a client would not be privileged. Just as eg press cuttings sent from a law firm to the client are not being sent in the capacity of a lawyer being asked to provide legal advice, so minutes prepared by a lawyer solely for convenience reasons will not qualify for privilege. Furthermore, Richards J had been referring to the issue of whether redactions could be made to an internal document of the client so as to protect the privilege that attached to legal advice that had been contained in a different communication that had passed between the client and its lawyers.

Here the lawyers were not providing only administrative support – the meetings had a very substantial legal content and the lawyers took the lead in discussions and in preparing minutes as an integral part of advising on the investigations and claims against the defendant.

Finally, Snowden J commented on the policy which justifies legal advice privilege. This cannot be confined to allowing a client to make candid disclosure to his lawyer. Instead, "lawyers are often also given the task of investigating, or are in possession of, relevant information. The lawyer must be able freely to communicate that information to his client to enable the client to make a fully informed decision as to what further legal advice to obtain, and what to do. When legal advice is then given, the lawyer must also be able to provide the client with an accurate record of the discussions and the decisions taken as a consequence. If the lawyer was concerned that his communications might be disclosable to third parties without the client's consent, he would be most unlikely to commit such matters to paper, with the inevitable risk of misunderstandings as to the facts, the legal advice given, and the decisions taken".

Accordingly, the High Level Documents were privileged.

COMMENT: This case confirms that the communication by a lawyer to his client of purely factual information will be covered by legal advice privilege, provided that it is given in the context of the lawyer providing legal advice and is not just administrative support. As such, it is a highly practical decision, taking into account the general relationship between the lawyer and client, rather than focusing on the precise contents of each communication instead.