Legal advice privilege is a hugely valuable right but the recent decisions in Astex Therapeutics Limited v AstraZeneca AB [2016] EWHC 2759 (Ch) and The RBS Rights Issue Litigation [2016] EWHC 3161 (Ch) serve as a timely reminder of the limitations on legal advice privilege, and that the court retains ultimate discretion to delve behind the self-certified cloak of legal advice privilege to satisfy itself that privilege is properly claimed.
In particular, consideration needs to be given by large organisations as to which employees may be deemed "the client" to ensure that communications with in-house legal advisers are protected by legal advice privilege.
In The RBS Rights Issue Litigation, the High Court considered the application of legal advice privilege to notes and transcripts of interviews conducted by or on behalf of RBS (i) with employees and ex-employees; and (ii) as part of an investigation. RBS claimed that under English law (as well as US law – RBS was seeking to rely on US law to the extent that it provided greater protection with regard to privilege) any communication by an employee authorised to communicate with a legal adviser to seek legal advice for his employer was privileged. Disagreeing, Hildyard J dismissed RBS' claim to privilege and concluded that "the nature of the authorised communications and the purpose for which they took place combine to preclude the availability of legal advice privilege in this case". In taking this decision, the High Court applied the well-known decision of the Court of Appeal in Three Rivers No.5 which confirmed a narrow interpretation of what constitutes the "client" for the purpose of legal advice privilege. The High Court granted permission for a leapfrog appeal on this issue to the Supreme Court; however, this appeal will not now take place, as amendments to the claimants' case meant the disputed documents were no longer relevant to the issues in the action.
In Astex Therapeutics Limited v AstraZeneca AB, Astex sought an order that AstraZeneca provide a list of every document over which it claimed privilege and an explanation of the nature of the privilege claimed. In considering Astex's application, Chief Master Marsh noted that "although it may have been conventional at one time to state that other documents are "by their nature privileged", such a statement has no place in modern litigation, let alone litigation of very real complexity". He went on to say that "it is clearly unhelpful, without describing the documents said to be privileged, to say that their nature explains why they are privileged because the recipient of the list of documents has no way of knowing which documents, or classes of documents, are being referred to". He concluded that the attendance notes of conversations and meetings with AstraZeneca's current and former employees would not attract legal advice privilege, since they "do not fall within the generally understood confines of legal advice privilege", save for those employees identified as "the client". With regard to AstraZeneca's claim that certain documents were protected by litigation privilege, he reached the view that there was insufficient evidence of the date from which, and the type of work over which, litigation privilege was claimed.
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