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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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Constantine Law—Anita Vadgama

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NEWS
NLJ's latest Charities Appeals Supplement has been published in this week’s issue
The treasury has sought to reassure the legal profession over concerns about cost, bureaucracy and independence when the Financial Conduct Authority (FCA) takes over regulation of anti-money laundering compliance
One out of two barristers has come under pressure from clients to act unethically, according to the results of this year’s Barristers’ Working Lives survey
The Court of Appeal has held the Competition Appeal Tribunal (CAT) was wrong to set aside a Competition and Markets Authority (CMA) decision on unfair pricing of phenytoin, an epilepsy drug
A flagship employment law reform is due to come into effect on 1 July, extending unfair dismissal rights to employees after six months in their job instead of two years
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