Legal advice privilege: The legacy of Three Rivers (No. 5) and the challenge of providing consistent protection to all client types
| Published date | 01 April 2022 |
| Date | 01 April 2022 |
| DOI | http://doi.org/10.1177/13657127221077330 |
| Subject Matter | Articles |
Legal advice privilege: The legacy of
Three Rivers (No. 5) and the challenge
of providing consistent protection to
all client types
Michael Stockdale
Northumbria Law School, Northumbria University, Newcastle upon Tyne, UK
Rebecca Mitchell
Northumbria Law School, Northumbria University, Newcastle upon Tyne, UK
Abstract
Legal advice privilege operates in the corporate context subject to a dominant purpose test
and an agency-based control mechanism. This mechanism fails to reflect the privilege’s ratio-
nale and prevents the dominant purpose test from giving corporations the same level of pro-
tection that the privilege provides to other client types. Following analysis of approaches in
other common law jurisdictions, this article concludes that the optimum control mechanism
for English Law is the dominant purpose test unfettered by the agency-based control mechan-
ism and extended to encompass third parties. It is the first significant attempt to consider the
merits of the agency-based control mechanism since the operation of the dominant purpose
test in this context was confirmed by the Court of Appeal. It rebuts the suggestion by
some academics that legal advice privilege should be restricted in the corporate context by
asserting that it is by expansion of the privilege’s ambit that consistency of protection across
client types will be achieved.
Keywords
dominant purpose test, functional equivalent test, legal advice privilege, legal professional
privilege, subject-matter test
Corresponding author:
Michael Stockdale, Northumbria Law School, City Campus East, Northumbria University, Newcastle upon Tyne NE1 8ST, UK.
E-mail: m.w.stockdale@northumbria.ac.uk
Article
The International Journal of
Evidence & Proof
2022, Vol. 26(2) 157–177
© The Author(s) 2022
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/ 13657127221077330
journals.sagepub.com/home/epj
Introduction
Legal advice privilege is the limb of legal professional privilege that attaches to confidential communications
between legal adviser and client for the dominant purpose of giving or obtaining legal advice.
1
Its rationale is:
there is a public interest in clients seeking legal advice to enable them to arrange their affairs in an orderly
manner; to do so clients must make lawyers aware of the relevant facts; and, if a court could require the disclosure
of communications between legal adviser and client then clients might not be prepared to confide in legal advisers.
2
The other limb of legal advice privilege, litigation privilege, attaches to confidential communications
that were made either for the sole or at least for the dominant purpose of obtaining legal advice, evidence
or information in preparation for adversarial litigation which had commenced or at least was contem-
plated at the time when the communications were made. It encompasses communications between
legal adviser or client and a third party.
3
It may be justified both via the same rationale that justifies
the existence of legal advice privilege and also on the basis of the entitlement of parties to adversarial
litigation not to disclose their cases prior to the trial.
4
To the extent to which it is capable of encompassing
communications that were not made for the dominant purpose of giving or obtaining legal advice,
however, the former justification would not appear to be applicable. This article focuses on the ambit
and development of legal advice privilege, not litigation privilege.
A primary concern of this article is the adequacy of the agency-based control mechanism
5
governing
the operation of legal advice privilege in the corporate context that has existed in English Law since its
adoption by the Court of Appeal in Three Rivers District Council & Ors vThe Governor & Company of
the Bank of England (No. 5).
6
The case concerned documents prepared by employees and former employ-
ees of the Bank of England for the Bank’s legal advisers. The Court of Appeal held that the privilege only
attached to communications between the lawyers and the Bingham Inquiry Unit (BIU), a unit that the
Bank had set up to deal with the matter in question and seek and receive advice from the lawyers, this
unit being held to equate with the client for the purposes of the disclosure application.
The control mechanism imposed by Three Rivers (No. 5) limits the ambit of legal advice privilege in
English Law in the corporate context. Under this agency-based approach, legal advice privilege does not
attach to communications between a corporation’slegal advisers and corporate employeesother than those
employees or groupings of employees who are authorisedto seek and receive legal advice on behalf of the
corporation and are thus identified as the client for the purposes of the privilege. If litigation had not com-
menced and was not contemplated when an internal corporate communication was made (such that litiga-
tion privilege cannot apply) the agency-based control mechanism that limits the operation of legal advice
privilege can restrict the ambit of legal professional privilege to a narrow range of corporate employees. As
is demonstrated below, the extent to which it does so depends both upon the breadth of judicial interpreta-
tion and the flexibility of judicial application. Even if interpreted generously and applied flexibly, it still
imposes a restriction upon the ambit of legal advice privilege that non-corporate clients are not subject to.
1. See;Lord Rodger of Earlsferry in Three Rivers District Council vGovernor and Company of the Bank of England (No. 6) [2005]
1 AC 610 at para. 50. For confirmation that the dominant purpose test is applicable in the context of legal advice privilege see The
Civil Aviation Authority vR (on the application of Jet2.com Limited) and the Law Society [2020] QB 1027 per Hickinbottom LJ
at para. 96.
2. SeeLord Scott of Foscote in Three Rivers District Council and others vGovernor and Company of the Bank of England (No 6),
above n. 1 at para. 34.
3. See Three Rivers District Council vGovernor and Company of the Bank of England (No. 6), above n. 1 per Lord Carswell at
para. 102.
4. Waugh vBritish Railways Board [1980] AC 521 per Lord Wilberforce at 531.
5. The ‘control-mechanism’terminology is adopted from the judgement of Tomlinson J at first instance in Three Rivers (No. 5)
[2002] EWHC 2730 (Comm) at para. 30. He used it in reference to the dominant purpose test, but it is used here to describe
the agency-based control mechanism that the Court of Appeal adopted in that case.
6. Three Rivers District Council & Ors v The Governor & Company of the Bank of England (No. 5) [2003] QB 1556.
158 The International Journal of Evidence & Proof 26(2)
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