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14 October 2019
Issue: 7859 / Categories: Legal News , Procedure & practice , Legal services , Fraud
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The extent of privilege

Legal advice privilege continues until and unless it is waived by the client or removed by statute, the Court of Appeal has held in a landmark case.

Addlesee & Ors v Dentons Europe [2019] EWCA Civ 1600 concerned negligence proceedings brought against Dentons by the investor in a scheme marketed by a Cypriot company that later dissolved. The company was advised by Salans, which has since been renamed Dentons Europe. The investor claimed the scheme was a fraud and sought disclosure of documents passed between Salans and the company, which were privileged at the time of communication. A court held that the privilege attached to the documents remains in place even though the company no longer exists.

On appeal, the investor reiterated its argument that privilege is a right solely for an identifiable client and the client’s successors in title. No third party was entitled to assert it. Where no legal person has a right to privilege, the right ceases to exist and the court cannot enforce it. Dentons argued that privilege continued unless waived by the client or overridden by statute.

Delivering his judgment, Lord Justice Lewison said: ‘The rationale for the privilege means that privilege comes into existence at the time when the person in question consults his lawyer. The client must be sure at the time when he consults his lawyer, that, without his consent, there are no circumstances under which the privileged communications will be disclosed without his consent.’

Lewison LJ said the investor’s arguments would amount to a ‘retrospective redrawing of the boundaries of legal advice privilege’. He clarified that his judgment referred only to legal advice privilege not litigation privilege.

MOVERS & SHAKERS

NLJ Career Profile: John McElroy, London Solicitors Litigation Association

NLJ Career Profile: John McElroy, London Solicitors Litigation Association

From first-generation student to trailblazing president of the London Solicitors Litigation Association, John McElroy of Fieldfisher reflects on resilience, identity and the power of bringing your whole self to the law

Clarke Willmott—Elaine Field

Clarke Willmott—Elaine Field

Planning and environment team expands with partner hire in Manchester

Birketts—Barbara Hamilton-Bruce

Birketts—Barbara Hamilton-Bruce

Firm appoints chief operating officer to strengthen leadership team

NEWS
A landmark Supreme Court ruling has underscored the sweeping reach of UK sanctions. In NLJ this week, Brónagh Adams and Harriet Campbell of Penningtons Manches Cooper say the regime is a ‘blunt instrument’ requiring only a factual, not causal, link to restricted goods
Fraud claims are surging, with England and Wales increasingly the forum of choice for global disputes. Writing in NLJ this week, Jon Felce of Cooke, Young & Keidan reports claims have risen sharply, with fraud now a major share of litigation and costing billions worldwide
Litigators digesting Mazur are being urged to tighten oversight and compliance. In his latest 'Insider' column for NLJ this week, Professor Dominic Regan of City Law School provides a cut out and keep guide to the ruling’s core test: whether an unauthorised individual is ‘in truth acting on behalf of the authorised individual’
Conflicting county court rulings have left landlords uncertain over whether they can force entry after tenants refuse access. In this week's NLJ, Edward Blakeney and Ashpen Rajah of Falcon Chambers outline a split: some judges permit it under CPR 70.2A, others insist only Parliament can authorise such powers
A wave of scandals has reignited debate over misconduct in public office, criticised as unclear and inconsistently applied. Writing in NLJ this week, Alice Lepeuple of WilmerHale says the offence’s ‘vagueness, overbreadth & inconsistent deployment’ have undermined confidence
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