Legal advice privilege: a search for clarity?

• 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.