header-logo header-logo

14 October 2019
Issue: 7859 / Categories: Legal News , Procedure & practice , Legal services , Fraud
printer mail-detail

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: Ken Fowlie, Stowe Family Law

NLJ Career Profile: Ken Fowlie, Stowe Family Law

Ken Fowlie, chairman of Stowe Family Law, reflects on more than 30 years in legal services after ‘falling into law’

Gardner Leader—Michelle Morgan & Catherine Morris

Gardner Leader—Michelle Morgan & Catherine Morris

Regional law firm expands employment team with partner and senior associate hires

Freeths—Carly Harwood & Tom Newton

Freeths—Carly Harwood & Tom Newton

Nottinghamtrusts, estates and tax team welcomes two senior associates

NEWS
Children can claim for ‘lost years’ damages in personal injury cases, the Supreme Court has held in a landmark judgment
The cab-rank rule remains a bulwark of the rule of law, yet lawyers are increasingly judged by their clients’ causes. Writing in NLJ this week, Ian McDougall, president of the LexisNexis Rule of Law Foundation, warns that conflating representation with endorsement is a ‘clear and present danger’
Holiday lets may promise easy returns, but restrictive covenants can swiftly scupper plans. Writing in NLJ this week, Andrew Francis of Serle Court recounts how covenants limiting use to a ‘private dwelling house’ or ‘private residence’ have repeatedly defeated short-term letting schemes
Artificial intelligence (AI) is already embedded in the civil courts, but regulation lags behind practice. Writing in NLJ this week, Ben Roe of Baker McKenzie charts a landscape where AI assists with transcription, case management and document handling, yet raises acute concerns over evidence, advocacy and even judgment-writing
The Supreme Court has drawn a firm line under branding creativity in regulated markets. In Dairy UK Ltd v Oatly AB, it ruled that Oatly’s ‘post-milk generation’ trade mark unlawfully deployed a protected dairy designation. In NLJ this week, Asima Rana of DWF explains that the court prioritised ‘regulatory clarity over creative branding choices’, holding that ‘designation’ extends beyond product names to marketing slogans
back-to-top-scroll