By Lucy Caulkett-
The legal scope protecting professional privilege was reinforced today after an appeal court ruled that in-house advice prepared prior to court proceedings is as protected by privilege as that given in the defence of proceedings.Professional privilege is the principle that maters discussed between a lawyer/solicitor and their client is protected by the assumed privileged of privacy, and cannot be disclosed for any reason without the consent of the client.
The highly anticipated ruling today preserving the conventional view of privilege has left the legal profession feeling more in line with the general consensus on this issue. It will form an important precedent for all similar cases in future. President of the Queen’s Bench Division Sir Brian Leveson, Chancellor of the High Court Sir Geoffrey Vos and Lord Justice McCombe , jointly added their weight to an appeal over a High Court ruling that a business under investigation by the Serious Fraud Office should turn over materials prepared for an earlier internal investigation. Many believe that had the appeal been unsuccessful, it would have greatly undermined the legal principle of professional privilege which preserves the relationship between a lawyer and his or her client.
The Law Society which intervened in the appeal, described the ruling as a boost for the principle of lawyer-client confidentiality. An earlier ruling by the High Court that seemed to compromise the principle of legal privilege was set to put the all important principle in disarray, but many legal experts believe the profession was brought back on track in a way consistent with the general thinking among legal minds. Mike Cross, News Editor of The Law Gazette , was present in the case, and gave The Eye Of Media.Com his assessment of the ruling.
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Addressing concerns that the High Court judges got it seriously wrong on such an important issue, Cross said: ”The three most senior judges didn’t quite find fault with the ruling of the High Court judges, it was a matter of interpretation. There were technical distinctions in the legal interpretation of professional privilege , but today’s ruling brings us much more in line with how the profession sees professional privilege. The SFO was seen as a threat to how people see privilege”.
Mrs Justice Andrews’ had ruled in Director of the Serious Fraud Office v Eurasian Natural Resources Corporation last year that documents including working papers and notes made by lawyers could not enjoy privilege because they had been created prior to a point before criminal legal proceedings ad come on stream. The company was investigating unsupported allegations against businesses in which it had a vested interest . The ruling rejected claims of litigation privilege and allowed legal advice privilege only for one category of documents, presentations to the company’s board.
DECISIVE
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The court’s conclusion in the appeal was decisive. Senior judges were unanimous in their riling that documents in three categories, including interview notes, and material associated with a review by forensic accountants, were legally protected by the benefit of litigation privilege. The ruling concluded that advice with the objective of avoiding legal proceedings or with a view to settlement, is protected by litigation privilege in the same manner as advice given for the purpose of defending such proceedings. Interestingly and confusingly for lay people, the senior judges said they saw reason to be bound by a Court of Appeal ruling, despite also having grounds to abandon the ruling.
‘It would be highly undesirable for us to enter into an unseemly disagreement which can be overturned only by the Supreme Court,’ the judges stated.Describing the outcome as a significant benefit to clients and to in-house lawyers, Law Society president Christina Blacklaws said: ‘Our involvement wasn’t about the underlying case, but about the principles at stake. If the High Court ruling had been upheld, any organisation facing a prosecution – not just multinationals, but charities, newspapers, small businesses or local authorities – could have to turn over private communications with their lawyers.’The rule of law depends on all parties being able to seek confidential legal advice without fear of disclosure.’
HISTORIC
Many in the legal profession were thrilled with the outcome and were quick to give statements to celebrate their joy with the judgement. Michael Roberts, partner at international firm Hogan Lovells which acted for ENRC said: ‘This historic ruling is significant not just for ENRC but for any company faced with undertaking an internal investigation in response to a whistleblower or other allegation of wrongdoing. It is critical that companies are not penalised for acting responsibly, and are able to instruct lawyers to conduct investigations without fear that the authorities will later be able to demand all of the lawyers’ work product.’
Experts in professional privilege welcomed the ruling. Elaina Bailes, senior associate at litigation specialist Stewarts, said: ‘The judgment gives much-awaited certainty on what potentially damaging documents lawyers and clients with claims before the English courts will have to disclose, and will also encourage engagement with regulators in criminal investigations.’The quick delivery of the judgment is telling. There was a sense of urgency in resolving the issue and the court took on board concerns within the legal profession that privilege was being eroded, particularly in criminal investigations.’
Julian Acratopulo, president of the London Solicitors Litigation Association and partner at Clifford Chance said: ‘Lawyers and clients investigating the most serious criminal issues will sleep a little easier in their beds. However, they may well still have nightmares about what constitutes a client for the purposes of legal advice privilege. The Court of Appeal made clear that, although in principle large corporations should be treated no differently, clarification of this issue was a matter for the Supreme Court.’
An SFO spokesperson said: ‘This is an important Court of Appeal judgment concerning the scope of legal professional privilege. We will be studying it carefully and considering its implications for the office.’
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