Case law: Court clarifies which communications with legal advisers must be disclosed to the other side in court proceedings
Businesses and others involved in legal disputes or regulatory proceedings will welcome clarification on which parts of communications with their legal advisers are protected by legal advice privilege and need not be disclosed to the other side.
This update was published in Legal Alert - December 2015
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Please note: A newer article on this case was published in the February 2016 edition of Legal Alert following subsequent developments in the legal process.
In legal proceedings relating to the manipulation of LIBOR rates one of the parties argued that certain documents should not be disclosed in court because they were protected by legal advice privilege. There were various other related complex legal and regulatory proceedings ongoing in different jurisdictions.
The other side argued that legal advice privilege only applied to actual legal advice in the documents. It did not cover other matters, such as summaries of developments in other legal and regulatory proceedings and discussions as to how they affected the actions to be taken in this case.
The court disagreed. It referred to previous rulings that, for example, 'legal advice is not confined to telling the client the law; it must include advice as to what should prudently and sensibly be done in the relevant legal context'; that privilege could attach to any 'necessary exchange of information of which the object is the giving of legal advice as and when appropriate'; and 'where information is passed by the solicitor or client to the other … aimed at keeping both informed so that advice may be sought and given as required, privilege will attach'.
The court said that the legal advice required in this case was given in the context of a complicated and serious set of allegations in dispute in a number of jurisdictions, and potentially giving rise to heavy penalties for the client. References in documents (such as summaries and minutes of meetings) to information about, and developments in, other proceedings, and consequent recommendations from the client's legal advisers on action to take, were part of the 'relevant legal context' because the client and its advisers needed to exchange information and opinions about these developments before legal advice could be given. The references were therefore protected by legal advice privilege.
- Businesses and others involved in legal disputes should ensure they are aware of which parts of their communications with legal advisers are protected by legal advice privilege, and which are not, to avoid prejudicing their case
Case ref: Property Alliance Group v The Royal Bank of Scotland  EWHC 3187
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