Noticeboard
| DOI | 10.1350/ijep.8.3.191.40872 |
| Published date | 01 July 2004 |
| Date | 01 July 2004 |
| Subject Matter | Noticeboard |
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF 191
NOTICEBOARD
Notices should be sent to Rosemary Pattenden, School of Law, University of East
Anglia, Norwich NR4 7TJ, UK. E-mail: R.Pattenden@uea.ac.uk
(2004) 8 E&P 191–205
Lawyer–client communications—United Kingdom and Canada
In the past three months legal professional privilege has been a keenly litigated
subject. Following closely on the heels of Three Rivers District Council v Bank of England
(No. 5) [2003] EWCA Civ 474 (as to which see (2003) 7 E & P 198), where the Court of
Appeal took a restrictive view of ‘the client’, have come two further ground-breaking
judgments about legal advice privilege. The issue in Three Rivers District Council v Bank
of England (No. 10) [2004] EWCA Civ 218 was whether communications that had as
their dominant purpose obtaining, preparing and presenting evidence and
submissions to a non-statutory private inquiry into the collapse of BCCI constituted
legal advice. The Court of Appeal agreed with the Law Reform Committee Report on
Privilege in Civil Proceedings (1967) that legal advice privilege is a privilege in aid of
litigation. This led the Court of Appeal to conclude that legal advice privilege extends
only to communications made ‘in relation to transactions involving legal rights
and obligations capable of becoming the subject of litigation’ ([2004] EWCA Civ 218
at [25]) and communications about ancillary matters (ibid. at [21]).
In summary ... where a solicitor–client relationship is formed for the
purpose of obtaining advice or assistance in relation to rights and
liabilities, broad protection will be given to communications passing
between solicitor and client in the course of that relationship. In all
the cases, however, the primary object of the relationship was to
obtain assistance that required knowledge of the law. We do not
consider that the same principle applies to communications between
solicitor and client when the dominant purpose is not the obtaining
of advice and assistance in relation to legal rights and obligations.
([2004] EWCA Civ 218 at [26], per Lord Phillips MR)
Communications by the bank with its external legal advisers, except those made
to obtain specific advice about legal rights and obligations, did not qualify for
legal advice privilege because their purpose was to present the bank’s role in the best
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