The English High Court has recently handed down two judgments in relation to privilege and disclosure of documents. 

The first case of R (on the application of Ford) v Financial Services Authority involved a claim for joint interest privilege and the second, Stiedl v Enyo Law LLP and others, related to the ability of solicitors to continue acting in proceedings where they had undertaken a preliminary review of documents which included privileged documents.

Joint interest privilege

Facts

In R (on the application of Ford) v Financial Services Authority the Claimant claimed joint interest privilege over eight emails which were referred to in the FSA’s Supplementary Investigation Report.  The Report led to warning notices being issued to the Claimant (and other individuals, who were also Interested Parties in this case).

The Claimant and the Interested Parties were executives of Keydata Investment Services Limited (“Keydata”), which was under investigation by the FSA.  Keydata later went into administration.  As the FSA’s investigation progressed they requested the administrators of Keydata to provide certain documents, which included documents that were protected by legal advice privilege.  The administrators waived the privilege and provided the documents.  The disclosed documents included eight emails from Keydata’s lawyers over which the Claimant was claiming joint interest privilege.

The Claimant asserted that Keydata’s lawyers were also advising him and the Interested Parties in their personal capacity and not simply as directors and officers of Keydata.  Although the lawyers’ retainer letter only identified Keydata as the client, the Claimant asserted that the lawyers were acting for him and the Interested Parties as well and, it was explicitly contemplated by them and the lawyers that in time they would become vulnerable to investigation by the FSA.

Test

The Judge held that in order for joint interest privilege to arise where there is no joint retainer a claimant would need to establish:

  1. that he communicated with the lawyer for the purpose of seeking advice in an individual capacity;
  2. that he made clear to the lawyer that he was seeking legal advice in an individual capacity, rather than only as a representative of a corporate body;
  3. that those with whom the joint privilege was claimed knew or ought to have appreciated the legal position;
  4. that the lawyer knew or ought to have appreciated that he was communicating with the individual in that individual capacity; and
  5. that the communication with the lawyer was confidential.

On the facts the Judge was satisfied that the Claimant was entitled to joint interest privilege. 

No privilege for materials from accountants

Six of the eight emails included material received from accountants which the lawyers had simply forwarded.  Following the recent Court of Appeal decision in R (on the application of Prudential plc and another) v Special Commissioner of Income Tax and others, it was held that privilege did not attach to material from the accountants simply because it was attached to emails from the lawyers. 

To access the Law Now on the Court of Appeal judgment, please click here.

Preliminary review of privileged documents by solicitors

In Stiedl v Enyo Law LLP and others the Claimant, Bjorn Steidl, sought an injunction restraining two firms of solicitors from acting for a group of claimants in other proceedings on the basis that the solicitors had knowledge of Mr Steidl’s privileged documents.

As part of disclosure given in other proceedings, certain documents that were privileged to Mr Steidl had come into the solicitors’ possession.  The solicitors had undertaken a preliminary review of the disclosed documents which involved only a superficial consideration of the face of a document in order to assess whether it bore any relevance to the issues in the other proceedings.  The preliminary review did not involve a substantive review of the privileged documents.   In addition it was undertaken by a team of junior lawyers and paralegals most of whom were no longer part of the team employed by the solicitors working on the other proceedings.

The Judge dismissed Mr Steidl’s application given the nature of the review undertaken and based on evidence given by those involved in the process.  The Judge was satisfied that there was no real risk that the privileged information would be recallable having regard to the lapse of time, the progress of the other proceedings and the technical nature of the issues involved in the other proceedings. 

Comment

The above two cases provide useful guidance on the law of privilege and the practical issues that arise whilst dealing with privileged material. 

Identifying the client has always been an important issue for the purposes of preserving legal advice privilege and it is crucial that this is done at the outset in order to avoid any ambiguity at a later stage, which can have undesired consequences. 

Finally, in circumstances where a party becomes privy to confidential and/or privileged information it should take steps immediately to ring fence the material and avoid any further review of it until it is established whether the material ought to have been properly disclosed in any case.  This is particularly important in cases where large volumes of documents are provided in bulk, where inadvertent disclosure is more probable.  Acting otherwise may prejudice the party’s ability to continue acting in the matter, which can have tactical and cost disadvantages.

Case references

R (on the application of Ford) v Financial Services Authority [2011] EWHC 2583 (Admin).  Please click here for a full copy of the judgment.

Stiedl v Enyo Law LLP and others [2011] EWHC 2649 (Comm).  Please click here for a full copy of the judgment.