In a privileged position: Three Rivers case overturned on appeal

In a recent Law-Now article, we discussed the December 2002 case of Three Rivers District Council v The Bank of England where Mr Justice Tomlinson considered the scope of what is known as "legal advice privilege" (to view a copy of this article, please copy and paste/click on the following link Legal professional privilege).

Legal advice privilege is the privilege that enables a party to withhold from disclosure the communications with its solicitor made to obtain or communicate legal advice, where legal proceedings are not contemplated or pending. (If legal proceedings are pending, litigation privilege should be considered.)

The article outlined how Tomlinson J had decided that legal advice privilege protected from disclosure documents prepared by a party in order to obtain advice from its solicitor provided that the obtaining of advice was the dominant purpose of creating the documents. The Court of Appeal decided on 3 April 2003 to overrule Tomlinson J's judgment.

The Court of Appeal considered many old cases, which developed the law of privilege and decided that these did not support the Judge's proposed extension of legal advice privilege to documents that a party produced for the purpose of obtaining legal advice. The Court of Appeal was of the view that only correspondence between solicitor and client which gave or sought legal advice was privileged. Privilege did not extend to documents communicated to a solicitor for advice to be taken on them. So in the Three Rivers case, the Council was entitled to see memoranda from the Bank's employees which gave their recollection of supervision of BCCI which were generated in connection with the Bingham Inquiry into the collapse of BCCI.

As a general rule therefore, when reviewing documents for disclosure, only correspondence sent to or by solicitors seeking or giving legal advice can be protected from disclosure by legal advice privilege. All other documents, including, for example, memos from employees, which are written so that they can be sent to solicitors as part of their brief, may not be protected from disclosure on the basis that they are subject to legal professional privilege. If litigation is contemplated or pending however, the documents might be withheld from disclosure on the grounds of litigation privilege.

For further information, please contact Clare Collier at [email protected] or on +44 (0)20 7367 2354.