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Legal advice privilege: a search for clarity?

01 December 2017 / Mark Hall , Jan-Jaap Baer
Issue: 7772 / Categories: Features , Procedure & practice
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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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Writing in NLJ this week, Sophie Ashcroft and Miranda Joseph of Stevens & Bolton dissect the Privy Council’s landmark ruling in Jardine Strategic Ltd v Oasis Investments II Master Fund Ltd (No 2), which abolishes the long-standing 'shareholder rule'
In NLJ this week, Sailesh Mehta and Theo Burges of Red Lion Chambers examine the government’s first-ever 'Afghan leak' super-injunction—used to block reporting of data exposing Afghans who aided UK forces and over 100 British officials. Unlike celebrity privacy cases, this injunction centred on national security. Its use, the authors argue, signals the rise of a vast new body of national security law spanning civil, criminal, and media domains
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