14 April 2003

This information is provided courtesy of Law-Now, CMS Cameron McKenna's free on-line information service.

www.law-now.com

In a privileged position: Three Rivers case overturned on
appeal

In a recent Law-Now article, we discussed the December 2002
case of Three Rivers District Council v The Bank of England
where Mr Justice Tomlinson considered the scope of what is
known as "legal advice privilege" (to view a copy of this
article, please copy and paste/click on the following link
http://www.law-now.com/law-now/press.cfm?id=5239).

Legal advice privilege is the privilege that enables a party
to withhold from disclosure the communications with its
solicitor made to obtain or communicate legal advice, where
legal proceedings are not contemplated or pending. (If
legal proceedings are pending, litigation privilege should
be considered.)

The article outlined how Tomlinson J had decided that legal
advice privilege protected from disclosure documents prepared
by a party in order to obtain advice from its solicitor
provided that the obtaining of advice was the dominant
purpose of creating the documents. The Court of Appeal
decided on 3 April 2003 to overrule Tomlinson J's judgment.

The Court of Appeal considered many old cases, which
developed the law of privilege and decided that these did
not support the Judge's proposed extension of legal advice
privilege to documents that a party produced for the purpose
of obtaining legal advice. The Court of Appeal was of the
view that only correspondence between solicitor and client
which gave or sought legal advice was privileged. Privilege
did not extend to documents communicated to a solicitor for
advice to be taken on them. So in the Three Rivers case,
the Council was entitled to see memoranda from the Bank's
employees which gave their recollection of supervision of
BCCI which were generated in connection with the Bingham
Inquiry into the collapse of BCCI.

As a general rule therefore, when reviewing documents for
disclosure, only correspondence sent to or by solicitors
seeking or giving legal advice can be protected from
disclosure by legal advice privilege. All other documents,
including, for example, memos from employees, which are
written so that they can be sent to solicitors as part of
their brief, may not be protected from disclosure on the
basis that they are subject to legal professional privilege.
If litigation is contemplated or pending however, the
documents might be withheld from disclosure on the grounds
of litigation privilege.

For further information, please contact Clare Collier at
clare.collier@cmck.com or on +44 (0)20 7367 2354.