Tue 11 Jun 2019

When can communications be protected by legal advice privilege?

When clients seek advice from a solicitor, they will likely expect that their discussions with the solicitor relating to the advice will remain confidential. Legal advice privilege may assist in these circumstances.

The scope of legal advice privilege was outlined  by Lord Rodger in the House of Lord's judgement in the English case of Three Rivers District Council and others v Governor and Company of the Bank of England (No 6) [2005] 1 AC 610 (which was referred to as Three Rivers No 6 ) as attaching to:

"all communications made in confidence between solicitors and their clients for the purpose of giving or obtaining legal advice even at the stage when litigation is not in contemplation. It does not matter whether the communication is directly between the client and his legal adviser or is made through an intermediate agent of either."

The recent Scottish case of David John Whitehouse and another v The Lord Advocate [2019] CSOH 38 contains some interesting discussion about when the protection offered by legal advice privilege can apply in Scotland. Of particular interest was the adoption by both parties, which was followed by the court, of the assumption that there was no material difference between Scots law and English law in this area.

Features of legal advice privilege

The Whitehouse decision looked at some of the necessary features of legal advice privilege which were identified by Lord Scott in Three Rivers No 6. These include the following:

  • A client - there must be a client. A client does not need to be an individual. In Whitehouse the court did not consider that the Lord Advocate could be denied the status of being a client after reflecting on other decisions where Customs and Excise, the Bank of England, the Coroners Department of the Home Office and the Director of Public Prosecutions had successfully asserted legal advice privilege. Reference was also made to case law confirming that lawyers can be clients for the purposes of legal advice privilege.
  • A lawyer acting as such - there must be advice given by a lawyer acting in the capacity as a lawyer. There have been questions previously about how this applies in relation to in-house or government lawyers. In Whitehouse the question was whether legally qualified COPFS officials could be lawyers acting in this capacity. The court was satisfied, taking into account that they had the same professional and ethical obligations in respect of the administration of justice as any other Scottish lawyer, that they could act as lawyers in this capacity.
  • No wavier - the right of legal advice privilege belongs to the client and it is therefore the client who has the entitlement to waive it. It will be necessary to look at the particular circumstances of a case to determine whether a right to legal advice privilege in respect of particular information sought has been waived.

A high level of protection is available where legal advice privilege applies. The right is not subject to public interest exceptions. A limited exception which can apply is the situation, discussed in case of Micosta SA v Shetland Islands Council 1983 SLT 483 where fraud or another illegal act is alleged against a party and their solicitor is said to have been directly concerned in carrying out the relevant transaction. What is clear is that when the criteria for legal advice privilege are satisfied it will be difficult to get around this.

It is important also to remember that legal advice privilege is not restricted to applying to matters where litigation is anticipated. It can apply regardless of what the advice relates to as long as the necessary features are present.

Where communications between a lawyer and client are in contemplation of a litigation they may attract the protection of litigation privilege. This protection can have a wider scope than legal advice privilege as it can also apply, for example, to reports prepared by third parties in contemplation of the litigation.

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