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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

Harneys—Maggie Kwok & George Weston

Harneys—Maggie Kwok & George Weston

Harneys senior leadership appointments

Freeths—Keith Browne & Jim Jordan

Freeths—Keith Browne & Jim Jordan

Freeths strengthens London Construction and Engineering practice with two strategic senior hires

Anthony Collins—Laura Moss

Anthony Collins—Laura Moss

Anthony Collins announces strategic hire to deepen skills base in the social business sector

NEWS
More than 100 teams from the legal and financial services sectors competed in five sports at the 51st Law Society RFC Festival of Sport earlier this month
Part-time status need only be an effective cause of less favourable treatment, rather than the sole cause, the Supreme Court has held in Augustine v Data Cars
Britain’s new acknowledgement that Israel’s occupation is unlawful, and accompanying settlement-goods ban and sanctions, is significant but overdue, argue Danny Friedman KC and Victor Kattan in NLJ this week
New planning fee rises, wider trade union access rights and a service-by-email trap feature in Stephen Gold’s latest Civil Way
Existing defamation law can respond to AI ‘hallucinations’, but allocating responsibility will prove harder where outputs reach users without human intervention
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