The Court of Appeal has reiterated that legal advice privilege remains in existence unless and until it is waived. Such privilege attaches not to the client to whom the advice was provided, but to the communications/documents passing between the client and their legal advisor. Unless waived, that privilege is not lost, even if no one exists who is entitled to assert it.

The Claimants had lost investments in a scheme marketed by a Cypriot company, Anabus Holdings Ltd, which has now gone insolvent. The Claimants issued proceedings against Anabus’s lawyers, Dentons, in connection with misrepresentations allegedly made to the Claimants regarding the scheme. The Claimants wanted documents passing between Dentons and Anabus to be disclosed as part of those proceedings. Due to Anabus’s insolvency, insofar as any rights in relation to the documents still exist, they have passed to the Crown as bona vacantia, which has disclaimed all interest in them without either asserting or waiving any legal professional privilege.

Relying upon the decision of the Upper Tribunal in Garvin Trustees Ltd v The Pensions Regulator [2014] 11 WLUK 469, the Claimants argued that the right to assert legal profession privilege has disappeared because Anabus no longer exists or, alternatively, because the Crown had disclaimed its interest in the relevant documents. However, that reasoning was rejected by the Court of Appeal.

In doing so, the Court highlighted the following key features of legal advice privilege:

  • Such privilege extends beyond disclosure in proceedings: it is a fundamental human right.
  • The doctrine exists because clients should be able to seek legal advice, secure in the knowledge that it will not ever be disclosed.
  • Legal advice privilege attaches to the documents themselves, and at the time when they are made.
  • The right to rely upon legal advice privilege can be “inherited", and is therefore not destroyed by virtue of the fact that the original client has become insolvent.
  • Once privilege has attached to a communication/document, it will only cease if waived by the client (or someone otherwise entitled to waive it) or is overridden by statute.
  • If the original client no longer exists, the key question is not whether anyone exists to assert the right, but whether anyone exists who is entitled to waive it.

Taking the above into account, the Court held that privilege still existed in Anabus’s communications with Dentons: the right to rely upon it had not disappeared with Anabus’s insolvency and had not been waived, either by the Crown or any other party. Accordingly, Dentons was entitled to withhold from inspection the documents sought by the Claimants.

In reaching this decision, the Court of Appeal explicitly overturned Garvin, in which, in very similar circumstances, the Upper Tribunal had held that the privilege in documents belonging to a now insolvent company had been lost. The Court of Appeal found that the Upper Tribunal had erred in focussing on who could assert privilege, rather than the pertinent question, namely, who can waive it.

The Addlesee decision is therefore a welcome development, which brings jurisprudence back into line with previous authorities.