The Expanding World of Privilege

‘Legal advice privilege’ is the legal phrase for the confidentiality that exists with regard to legal advice and has traditionally been interpreted to mean that legal advice between a solicitor and their client cannot be required to be disclosed for any reason to any other person, which includes the authorities.

In a recent case, the High Court considered the extent to which legal advice privilege extends to communications which do not contain legal advice.

At issue was whether documents which were to do with the conduct of investigations into the Royal Bank of Scotland by regulators had legal advice privilege when they were not essentially giving legal advice.

Mr Justice Snowden decided they did, holding that ‘the policy justification for legal advice privilege cannot be limited to a need to encourage a client to make candid disclosure to his lawyer of all relevant matters without fear that what he reveals will later be disclosed to others without his consent. Lawyers are often also given the task of investigating, or are in possession of, relevant information. The lawyer must be able freely to communicate that information to his client to enable the client to make a fully informed decision as to what further legal advice to obtain, and what to do. When legal advice is then given, the lawyer must also be able to provide the client with an accurate record of the discussions and the decisions taken as a consequence. If the lawyer was concerned that his communications might be disclosable to third parties without the client’s consent, he would be most unlikely to commit such matters to paper, with the inevitable risk of misunderstandings as to the facts, the legal advice given, and the decisions taken. That could not possibly be said to serve the public interest in assisting clients to achieve an orderly arrangement of their affairs.’