Mrs Justice Andrews’s ruling in the High Court in May 2017 limiting the scope of legal professional privilege sent shock waves throughout the profession and was seen by many as privilege lost.
Perhaps the most controversial part of the ruling was that the reasonable contemplation of a SFO investigation did not amount to the reasonable contemplation of litigation; and if the dominant purpose of the investigation was fact-finding in order to avoid, rather than to conduct litigation, there was no litigation privilege.
In a judgment handed down on 5 September 2018, the Court of Appeal has restored some certainty for lawyers conducting internal investigations. Documents created during an internal investigation in anticipation of a criminal investigation can attract privilege and will do so even if a company ultimately intends to co-operate with, rather than litigate against, a prosecutor.
The Court of Appeal also made a number of interesting comments in relation to legal advice privilege, particularly in relation to the narrow definition of ‘the client’ in Three Rivers (No. 5). It was felt that this definition was now anachronistic.
“If legal advice privilege is confined to communications passing between the lawyer and the “client” (in the sense of the instructing individual or those employees of a company authorised to seek and receive legal advice on its behalf), this presents no problem for individuals and many small businesses, since the information about the case will normally be obtained by the lawyer from the individual or board members of the small corporation. That was the position in most of the 19th century cases. In the modern world, however, we have to cater for legal advice sought by large national corporations and indeed multinational ones. In such cases, the information upon which legal advice is sought is unlikely to be in the hands of the main board or those it appoints to seek and receive legal advice. If a multi-national corporation cannot ask its lawyers to obtain the information it needs to advise that corporation from the corporation’s employees with relevant first-hand knowledge under the protection of legal advice privilege, that corporation will be in a less advantageous position than a smaller entity seeking such advice. In our view, at least, whatever the rule is, it should be equally applicable to all clients, whatever their size or reach.”
However, given that the Court of Appeal is bound by Three Rivers (No. 5), that will be need to be an argument in the Supreme Court on another day.