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01 December 2017 / Mark Hall , Jan-Jaap Baer
Issue: 7772 / Categories: Features , Procedure & practice
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Legal advice privilege: a search for clarity?

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Jan-Jaap Baer & Mark Hall review recent developments in the law of privilege

  • The current restrictive approach to privilege poses real challenges to lawyers when seeking to investigate issues raised by corporate clients without creating documents that will be subsequently disclosable to regulators or litigants.
  • Increasing difficulties in claiming privilege may make it harder to persuade employees to fully co-operate in investigations.

Since 2004 the leading authority on legal advice privilege has been the much criticised Court of Appeal decision in Three Rivers (No 5) [2003] EWCA Civ 474, [2003] QB 1556, which gave a restrictive interpretation as to who is the ‘client’ in the corporate context. Several recent court decisions have confirmed this narrow approach and may suggest a trend towards yet further erosion in the ability to claim both legal advice and litigation privilege.

Who is the client?

Legal advice privilege applies to confidential communications passing between a client and the client’s lawyer which have come into existence for the purpose of giving or receiving legal

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MOVERS & SHAKERS

Thackray Williams—Lucy Zhu

Thackray Williams—Lucy Zhu

Dual-qualified partner joins as head of commercial property department

Morgan Lewis—David A. McManus

Morgan Lewis—David A. McManus

Firm announces appointment of next chair

Burges Salmon—Rebecca Wilsker

Burges Salmon—Rebecca Wilsker

Director joins corporate team from the US

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When it comes to free legal advice, demand massively outweighs supply. 'Millions of people are excluded from access to justice as they don’t have anywhere to turn for free advice—or don’t know that they can ask for help,' Bhavini Bhatt, development director at the Access to Justice Foundation, writes in this week's NLJ
When an ex-couple is deciding who gets what in the divorce or civil partnership dissolution, when is it appropriate for a third party to intervene? David Burrows, NLJ columnist and solicitor advocate, considers this thorny issue in this week’s NLJ
NLJ's latest Charities Appeals Supplement has been published in this week’s issue
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