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13 February 2020
Issue: 7874 / Categories: Features , Procedure & practice
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Maintaining the privilege

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Jean-Pierre Douglas-Henry & Bryden Dalitz consider recent developments on legal professional privilege 
  • Communications remain privileged even if the corporate privilege holder has been dissolved.
  • Leaked email alleged to reveal dishonest conduct is not precluded from being privileged by the iniquity exception.
  • A legal note partly read out in court by counsel may retain privilege.

At the end of 2018, the Court of Appeal in SFO v ENRC overturned a first instance decision that denied a claim for litigation privilege over legal and forensic documents generated as part of an internal corruption investigation. The judge at first instance found that ENRC did not contemplate criminal prosecution even though the SFO had commenced an investigation into the company. Interestingly, the judge went on to hold that even if a prosecution had been in contemplation, none of the documents had in fact been created for the dominant purpose of litigation; and litigation privilege does not extend to documents created in order to obtain legal advice as to how best to avoid anticipated litigation including regulatory or criminal

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MOVERS & SHAKERS

Clarke Willmott—Matthew Roach

Clarke Willmott—Matthew Roach

Partner joins commercial property team in Taunton office

Farrer & Co—Richard Lane

Farrer & Co—Richard Lane

Londstanding London firm appoints new senior partner

Bird & Bird—Sue McLean

Bird & Bird—Sue McLean

Commercial team in London welcomes technology specialist as partner

NEWS
What safeguards apply when trust corporations are appointed as deputy by the Court of Protection? 
Disputing parties are expected to take part in alternative dispute resolution (ADR), where this is suitable for their case. At what point, however, does refusing to participate cross the threshold of ‘unreasonable’ and attract adverse costs consequences?
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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