#3650 - Advice Privilege - Civil Procedure

ESSAY PLAN 9 – advice privilege

Only a lawyer can give privileged advice

Legal professional privilege = 2 things:

1) advice privilege (covers communications between lawyer and client for the purposes of obtaining legal advice- privileged whether or not litigation is contemplated) and

2) litigation privilege (applies to communications between a client or his lawyers and third parties which come into existence after litigation is contemplated or commenced, with the sole or dominant purpose of obtaining advice, information, or evidence for the purposes of the litigation

Thanki (2006)- no overlap between these privilege; a communication or document should be analysed as privileged under one head rather than the other and not privileged under both (cf Zuckerman, 2006).

Communications between a lawyer and a client for the purposes of obtaining legal advice are privileged – protected from disclosure whether or not litigation is contemplated.

It is the status of the advisor as a lawyer, not the nature of the advice given which determines whether the communications are protected by legal advice privilege.

Legal advice privilege operates as an absolute protection because:

• Ex p B – it cannot be disapplied by exercise of judicial discretion

• B v Auckland District Law Society – PC: Unless waived by the holder it endures beyond the immediate occasion or context of the privileged communications

The rationale for legal advice privilege is to enable a person to consult a lawyer and tell him the whole truth knowing that what he reveals in confidence cannot be disclosed without his consent and used to his prejudice.

Andrews (1994) – “modern society accepts that there is an important constitutional value in obtaining free, confident and candid legal consultation”.

Legal advice privilege allows a person to understand what he is legally entitled to do/not do, facilitates the entering into of valid transactions such as contracts and wills and the orderly settlement of matters arising from divorce and separation = furthers the public interest by upholding the administration of justice and the rule of law (Hale).

The absence of legal advice privilege would be a risk that a client would hold back from telling him all the truth out of fear – the concern then is that the advice might be inaccurate or unsound because the lawyer has been given only an incomplete and inaccurate picture of the client’s position (Baroness Hale in Three Rivers No 6).

Three Rivers No 6 – Lord Scott: it is “necessary in our society” being one “built upon a belief in the rule of law” that communications between clients and lawyers for the purposes of obtaining legal advice should “be secure against the possibility of any scrutiny from others”

Three Rivers (no 5) – communications during internal investigation within the Bank of England. CoA held that when an event involving or affecting a company (or other organisation) is being investigated or considered, and lawyers are being used to gather the facts surrounding the relevant event, the client should be defined narrowly to comprise only a small segment of the company or organisation who have been chosen to carry out and supervise the internal investigation. Sometimes legal consultation beyond this core client group might be privileged on the basis of litigation privilege, but that head of privilege is confined to confidential communications in relation to adversarial proceedings as distinct from an inquiry (Re L). BUT THIS CREATES UNCERTAINTY – would be better to define the client as ‘the company’ in all cases, but that is not English law – better approach is Upjohn in US SC.

Dehn and Brindle doubt whether empirical evidence would lend much support to the rationale that advice privilege means clients reveal more to lawyers. Whether legal advicee is sought depends on other factors, plus many people ignorant.

R(Prudential plc) (2010) – CoA confirmed that only communications with lawyers for the purposes of obtaining legal advice are protected by legal advice privilege.

Application by JR by Prudential to quash or limit the scope of notices served upon it by the Commissioner of Income Tax requiring it to produce documents relating to a tax avoidance scheme. Prudential asserted that the notices required them to produce documents which contained legal advice sought and received from PwC. The legal advice was not sought or given because litigation was commenced or contemplated so their documents were not protected from disclosure by litigation privilege.

The CoA held that only advice from and given by members of the legal profession is protected by legal advice privilege and it did not extend to legal advice from accountants or other non lawyers.

CoA felt bound by Wilden Pump –C sought disclosure of D’s correspondence with patent agents containing legal advice obtained before the D embarked on the manufacture. The correspondence was relevant to the D’s defence that it did not know the pumps infringed C’s copyright. CoA held that legal advice privilege was limited to lawyers and did not extend to patent agents.

Lloyd LJ – noted that Parliament had considered extending legal advice privilege to protect advice from non-lawyers and had decided against it. The limited statutory exceptions which extends legal advice privilege in narrowly defined circumstances to professionals such as patent agents, trade mark agents and licensed conveyancers was very limited.

Because legal professional privilege is a significant restriction on the powerful public interest in making all relevant evidence available for use in proceedings, it is a matter of public policy as to what the bounds of legal professional privilege should be.

Lloyd LJ – the restricted nature of legal advice privilege was in accordance with HR law because it made the legal position certain: the rule was an almost absolute exception to the general rule on the admissibility of all relevant evidence, but it was clearly limited in its extent.

He felt that if it was extended by the common law to advice from professionals other than lawyers, the scope of the rule would be “lamentably uncertain”.

There is no restrictions on a person setting up as an account and providing advice on any relevant matter including tax law, whereas solicitors and barristers owe a duty to the court and must belong to a recognised professional body which regulates their conduct and activities (Charles J noted this at first instance along with the fact lawyers owe duties to the court which provides a check or balance in the system).

Note that there is an outstanding appeal by to SC

Hughes (2011) – “CoA advanced sound reasons...based on coherency”

Balabel – Taylor LJ: not all communications with a lawyer will attract legal advice privilege. If a solicitor advises on non legal matters such as business matters, investment policy or finance policy that advice will lack “relevant legal context” and thus not have advice privilege.

Wilden Pump – further advice given by a solicitor in the capacity of a friend would not be privileged.

Presentational advice for participation in an inquiry is covered though.

Three Rivers No 6 – assumed legal advice privilege will apply only if the dominant purpose of that communication was eliciting or giving of legal advice (per Lords Scott, Roger, Carswell).

Sagheera – Rix J: this is a better approach; it is sufficient that the predominant purpose of the relevant retainer was the giving of legal advice; thereafter minute dissection of individual communications is unnecessary; all matters falling within that confidential relationship will attract legal advice privilege.

Some statutes override advice privilege e.g. Regulation of Investigatory Powers Act 200, s27(1) – authorised covert surveillance of suspects held within custody (per Baroness Hale in McE).

R v Cox & Railton – prevents privilege from attaching to legal advice or assistance concerning the client’s intended commission of a crime or fraud (except breach of contract or torts of conversion of goods or trespass).

In House issues

Akzo Nobel (2010) – ECJ decision: confirms that an in-house lawyer’s advice does not attract legal advice privilege for the purposes of EU competition law legal advice privilege. The disputes documents were emails between general manager and...