Legal Advice Privilege Update – Who is the “client”?
The importance of clearly demonstrating who your “client” is for the purposes of establishing Legal Professional Privilege has once again been demonstrated by the case of Re The RBS Rights Issue Litigation  EWHC 3161 (Ch) (“RBS Rights Issue”).
Legal Professional Privilege (“LPP”) is an umbrella term which comprises Legal Advice Privilege and Litigation Privilege. Legal Advice Privilege (“LAP”) enables a client to obtain legal advice from their lawyer, without the worry that the advice will be disclosed to a third party. This type of privilege applies to confidential communications which pass between a client and the client’s lawyer, and which have come into existence for the purpose of giving or receiving legal advice. Litigation Privilege follows the principle that a litigant, or a potential litigant, should be able to obtain information or evidence to support their case without fearing disclosure of such information to the ‘other side’. In order to prove Litigation Privilege, the material in question must be a confidential communication between a lawyer and their client (or between either of them and a third party); and be made for the dominant purpose of litigation which must be pending, reasonably contemplated or existing.
The leading UK case in the area of LAP is Three Rivers District Council and others v The Governor & Company of the Bank of England Rev 1  EWCA Civ 474 (“Three Rivers”). The Court of Appeal in this case gave an extremely restrictive definition of “client” for the purposes of LAP, namely that the privilege would only cover communications between the lawyer and a small group of the business’ employees who are actually tasked with providing instructions to the lawyers. The impact of this being that documents between lawyers and other employees outside of this group could be disclosable to the other side as they would not be covered by privilege.
This restrictive interpretation of what constitutes the “client” was reiterated by the High Court in RBS Rights Issue. This case held that only specific RBS employees formed part of the “client” for the purposes of LAP, namely those who have been authorised by or on behalf of the company to seek and receive legal advice, and that it does not extend to the organisation as a whole. This has been met with irritation from the legal industry, who may have wished for a welcome break from the very limited definition of who is the “client”, as was set out in Three Rivers. Courts of first instance will now continue to be bound by this narrow definition. However, the Judge appeared to be sympathetic with RBS’ position in respect of this issue and noted that it “may be that in a suitable case the Supreme Court will have to revisit the decision”, and we will therefore be watching closely for, and reporting on, any future developments.
Following on from RBS Rights Issue, it is well worth thinking carefully about defining who the “client” is at the outset of any matter and ensuring that confidential communications remain between you and those particular individuals to ensure that LAP is upheld.
If you require any further information on this topic, or wish to arrange a “Lunch and Learn” for your business, please do not hesitate to contact my colleagues Leanne McKeown or Jessica McManus who will be happy to help you.
By Ellen Jarvis