Legal advice privilege and the need to identify the “client”

http://www.bailii.org/ew/cases/EWHC/QB/2014/1847.html

The claimant alleged that the defendant did not comply  with his “subject access” request under the  Data Protection Act 1998. One of the defences raised by the defendant was that the withheld  material was exempt from disclosure on the grounds of legal professional privilege (in particular,  legal advice privilege). The two relevant documents were:

  1. A document in which the head of the Coroners’ Section of the Home Office sought legal advice  from an in-house lawyer. The claimant argued that there was no evidence that the individual seeking  legal advice was authorised to do so on behalf of the Home Office. He relied on the Court of  Appeal’s Three Rivers (No.5) decision in support of his argument that the Court of Appeal limited  who could be regarded as a client for the purpose of legal advice privilege. However, Baker J said  that the Court of Appeal had been “dealing with a markedly different set of circumstances”. In  Three Rivers the client organisation had itself created a separate entity which was specifically responsible for seeking legal advice.  However, in this case there was no evidence of a separate entity having been created. Furthermore,  as head of his department (and in the absence of contrary evidence), it was implicit that the  individual in question had authority to seek advice from the in-house lawyer
  2. An annotated copy of the document referred to in (1) above, which was sent to a non-lawyer for  her opinion. The judge noted that legal advice privilege is not lost just because a request for  legal advice (or the advice itself) is shown to a third party. However, here, a copy of the original document was sent to the  non-lawyer for her independent opinion (either prior to or separate from the legal advice received  from the lawyer). As a result, the copy was not privileged from disclosure

However, the judge held that although the claimant had suffered some damage, this was a case in  which an award of nominal damages (GBP 1) was appropriate under the Act. The claimant was also  awarded GBP 2,250 for distress. The Act provides that an individual must have suffered “damage” before an award of compensation for  distress can be made and the judge concluded that it was sufficient that the claimant had been  awarded nominal damages.

The judge went on to find that a further document did not fall within the scope of “personal data”  under the Act, because it had merely been a conduit for the provision of information contained in other documents.

COMMENT: The judge’s comments regarding “who is a client” for the purpose of legal advice privilege are noteworthy. The Three Rivers decision is widely considered to be authority for the view that only communications between those individuals within the client organisation who are charged with obtaining legal advice are the “client” for legal advice privilege, and so those individuals should be clearly identified as the “client”. However, here the judge is suggesting that it is only if the client organisation itself chooses to arrange its affairs in that manner that a separate group need be identified as the “client”. It is submitted that that view is correct. There is little discussion in the Three Rivers decision itself on this important practical issue and it is difficult to see why any individual within a company who is authorised to communicate with the company’s lawyers on a particular issue or claim should not fall within the definition of a “client”. However, it should be borne in mind that this is a decision of the High Court only and the Court of Appeal’s decision in Three Rivers remains binding.