London buses are known more for their irregularity than their regularity. A complete absence of them is often followed by a number of them in close succession; so too with cases on legal professional privilege.
The most important case, in recent years, concerning the scope of legal professional privilege was the decision of the House of Lords in Three Rivers DC v Bank of England (No 6) [2004] UKHL 48 (Three Rivers).
More recently, in The Director of the SFO v Eurasian Natural Resources Corporation Limited [2018] EWCA Civ 2006 (SFO v ENRC), the Court of Appeal considered the role and scope of legal professional privilege, as a constraint on the exercise of regulatory powers. And in The Financial Reporting Council Ltd v Sports Direct International plc [2018] EWHC 2284 (Ch) Arnold J had to consider the scope of legal professional privilege, as a constraint on the exercise of the FRC’s broad powers to obtain information from a statutory auditor and its clients for the purpose of investigating statutory audit work (see FC Feature 21 November 2018).
Even more recently, in WH Holding Ltd v E20 Stadium LLP [2018] EWCA Civ 2652 (West Ham), the Court of Appeal was concerned with (1) the scope of litigation privilege, (2) the grounds upon which the court will be prepared to inspect documents where there is a challenge to an assertion of privilege, and (3) the application of the dominant purpose test in relation to documents produced for more than one reason.
In Three Rivers, the court was concerned with the issue as to whether communications between the Bank of England (BoE), their solicitors and counsel relating to the content and preparation of a so-called ‘overarching statement’ submitted on behalf of the BoE to the Bingham Inquiry qualified for legal professional privilege. The Bingham Inquiry had been established to inquire into the collapse of the Bank of Credit and Commerce International (BCCI). Its terms of reference included: “to enquire into the supervision of BCCI under the Banking Acts”. The Bingham report was published in October 1992. In 1993, depositors with BCCI and BCCI’s liquidators brought a claim against the BoE, for the loss said to have been suffered by them as a result of BCCI’s collapse. The BoE resisted disclosure of the overarching statement on the grounds that it was protected by legal professional privilege. The House of Lords upheld that claim of privilege.
In West Ham, the first issue, as to the scope of litigation privilege, was whether such privilege extended to documents which were concerned with settlement or avoidance of litigation but which neither (a) sought advice or information for the purpose of conducting litigation nor (b) revealed the nature of such advice or information. The Judge at first instance, Norris J, had refused disclosure.
In allowing the appeal, in West Ham, the Court of Appeal held, relying on Lord Carswell in Three Rivers: (1) that legal professional privilege is a single integral privilege which has two sub-heads: legal advice privilege and litigation privilege, but they are not necessarily coterminous, having different characteristics; (2) litigation privilege is limited to adversarial proceedings; and (3) communications between parties or their solicitors and third parties for the purpose of obtaining information or advice in connection with existing or contemplated litigation are privileged, but only where (a) litigation is in progress or contemplation, (b) the communications are made for the sole or dominant purpose of conducting that litigation, and, importantly, (c) that litigation is adversarial, not investigative or inquisitorial.
The Court of Appeal also cited with approval the following statement from SFO v ENRC:
“In both the civil and the criminal context, legal advice given so as to head off, avoid, or even settle reasonably contemplated proceedings is as much protected by litigation privilege as advice given for the purpose of resisting or defending such contemplated proceedings.”
However, the Court of Appeal rejected the finding, of Norris J, that SFO v ENRC had extended the scope of documents covered by litigation privilege. The court found that there is no separate head of privilege which covers internal communications falling outside litigation privilege as defined in Three Rivers.
In relation to the purpose for which the documents were produced, the Court of Appeal, in West Ham, accepted the test laid down by Lord Wilberforce in Waugh v British Railways Board [1980] AC 521, that in order to benefit from litigation privilege, a document must have been produced for the sole or dominant purpose of conducting litigation.
Whilst this recent trio of cases has added greater clarity in relation to an assessment of when and whether legal professional privilege may be claimed in respect of documents, they also disclose that the scope of the privilege is perhaps narrower than one might expect. Considerable caution needs to be exercised. As these cases illustrate the determination of a claim for legal professional privilege is always fact specific.