This alert discusses Mr Justice Picken’s reasoning for departing from the landmark Court of Appeal privilege decision in Three Rivers (No 5),1 the limited principled expansion of legal advice privilege that this decision represents and the cautious approach that clients should continue to adopt when seeking to benefit from legal advice privilege in circumstances where litigation privilege is not available.
The Court’s decision and reasoning
In Three Rivers (No 5), legal advice privilege was described as applying to communications made between a lawyer and client, with “client” narrowly defined to include only those within the client organization authorized to seek and receive legal advice on behalf of the organization. Other documents and communications between those individuals who form part of the narrowly defined client were thought to fall outside the scope of legal advice privilege, unless they evidenced the content of the legal advice received. The narrow interpretation of the corporate client has subsequently been confirmed by the Court of Appeal in the case of SFO v. ENRC.2
In the present case, the defendant asserted legal advice privilege over certain communications shared within, and documents created by, its defined “client group” that did not involve a lawyer. The claimants contended such materials should be disclosed, consistent with Three Rivers (No 5), unless they evidenced lawyer-client communications or were drafts intended to be sent to lawyers.
The Court rejected the claimants’ restrictive approach and confirmed that legal advice privilege can extend to intra‑client communications and documents created for the dominant purpose of seeking legal advice.
Mr Justice Picken held that Three Rivers (No 5) was directed at whether documents created by employees outside the relevant client group were privileged and did not address intra‑client communications. It should not, therefore, be treated as binding authority for the availability of legal advice privilege for intra‑client communications and documents.
The Court accepted that legal advice privilege is not strictly limited to lawyer-client communications in every instance and that internal preparatory material (e.g., a client writing themselves a memorandum with notes ahead of an initial meeting with their lawyer) can be integral to the advice-seeking process. It would be illogical if internal client working papers prepared for seeking legal advice were treated differently from lawyers’ working papers. Provided that the intra‑client communication or document is created for the dominant purpose of seeking or receiving legal advice, legal advice privilege applies.
Limited expansion and cautious approach
The decision offers clients a helpful but limited expansion of the previously understood scope of legal advice privilege, which now includes intra-client communications and documents shared and created in the absence of a lawyer, provided the materials were created for the dominant purpose of seeking legal advice.
It is, however, a first-instance decision, and until a higher court confirms Mr Justice Picken’s view, organizations would be well advised to ensure that those within the client group communicate all requests for legal advice to a lawyer in order to strengthen any subsequent claim to legal advice privilege.
Organizations should continue to be cautious when determining whether legal advice privilege protections are available to them, as the decision does not impact the unhelpfully restrictive and narrow definition of a client for purposes of legal advice privilege. The Court of Appeal decisions in Three Rivers (No 5) and SFO v. ENRC remain good law unless and until overturned by the Supreme Court. Organizations must therefore continue to treat fact gathering from employees outside the narrow client group carefully, particularly where litigation privilege is not available, on the basis that those communications are unlikely to be covered by legal advice privilege.
