The Court of Appeal has recently handed down an important Judgement protecting legal professional privilege (‘LPP’).
Helen Holder of Kangs Solicitors explains the nature of LPP.
What is Legal Professional Privilege? | Kangs Criminal Law Advisory Team
LPP protects all communications between professional legal advisors and their clients from being disclosed without each individual client’s permission.
In 1996 Lord Taylor of Gosforth QC outlined the importance of LPP when he stated:
“a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests.”
Documents or communication between a client and professional legal advisor are not privileged where the purpose of the client is the furtherance of crime, fraud or other iniquity.
The Recent Court of Appeal Case | Kangs Case Law Reporting Team
- The Appeal Court considered the matter of Addlesee & others v Dentons Europe LLP in which investors in a scheme marketed by a Cypriot company (Anabus) were seeking disclosure of documents from their solicitors at the time, Salans LLP, which firm has subsequently been renamed Dentons Europe LLP (‘Dentons’).
- The investors claimed that the scheme was fraudulent and had issued proceedings against Dentons claiming deceit and/or negligence. To enable them to pursue the claim they wished to see documents passing between Salans LLP and Anabus, which had been dissolved in Cyprus in 2016.
- The Court of Appeal was asked to consider whether privilege was waived when the client which had received the legal services no longer existed.
The competing arguments
- The investors argued that as the client was no longer identifiable, as it had ceased to exist, there was no legal person entitled to assert privilege and that a third party could not assert LPP.
- Dentons maintained that once LPP had attached to a communication, that would only cease having been waived by the client entitled to the privilege or when so ordered by statute.
The court ruling
The Court found in favour of Dentons with Lord Justice Lewison stating:
“In my judgment, therefore, the boundaries of legal advice privilege, within which it is absolute unless and until waived, are that the communication in question must be a communication between lawyer and client, made in connection with giving or receiving legal advice, otherwise than for an iniquitous purpose…
…legal advice privilege, once established, remains in existence unless and until it is waived.”
How Can We Assist? | Kangs National Criminal Defence Solicitors
If you require assistance in relation to any privileged material, or the status of potentially privileged material of any nature we will be happy to advise and guide you.
Our specialist team can be contacted through the following: