What is legal privilege and can it be waived?

In litigation there are certain privileges which entitle parties to withhold producing evidence to other parties and the Court. Such evidence can be either written or oral.

Legal advice privilege protects confidential communications between solicitors and their clients for the purpose of seeking or giving legal advice.

The Court of Appeal in the case of Addlesee & Ors v Dentons Europe LLP [2019] EWCA Civ 1600 dealt with this particular point.

In this case, there were investors, which were in a scheme marketed by a Cypriot company Anabus Holdings Ltd, and it was alleged that such a scheme was fraudulent. Proceedings were initiated by the Claimant for deceit and negligence against Dentons in 2016 after Anabus Holdings Ltd went out of business. The Claimant wished to see relevant documents, which were subject to privilege. The High Court ruled that privilege continued even though the company Anabus Holdings Ltd had dissolved. This was appealed by the Claimant.

In the Court of Appeal the Claimant argued that legal advice privilege was only for the benefit of a client and not any third parties. As such, with there being no identifiable client it was argued that legal privilege ceased to exist and therefore such documents were now able to be disclosed.

The Defendant argued that such privilege can only cease if it is waived by the client, someone who has the requisite authority or if it is overridden by statute.

Lord Justice Lewison found in favour of the Defendant. He believed that legal advice privilege remains even if the client, who has benefit of the advice has disappeared and that such privilege was ‘not merely a private right’ and therefore it did not cease on the death of a living person.

Lord Justice Lewison further added:

“I would hold that legal advice privilege, once established, remains in existence unless and until it is waived. It is established as a result of the purpose for which, and the circumstances in which, the communication was made. Whether there is no one who can now waive it; or whether the Crown could have waived it, but has not done so; does not matter. I would therefore overrule Garvin; and hold that the Master was right in her refusal to order disclosure; but for different reasons.”

This is an important decision regarding the legal principle behind legal professional privilege and the benefits that each party is entitled to. It is important to note that such privilege remains in force unless waived.

To amount to legal advice privilege, only communications between a lawyer (in-house or private practice) is protected and this does not mean that all communications are covered. It is only those individuals who are authorised to give instructions to and receive advice from the lawyer concerning the specific issue in question that are covered.

If you have any questions regarding legal privilege or the right to waive this, please contact Maninder Mann, Solicitor in our Dispute Resolution team on 01604 828282 or by email maninder.mann@franklins-sols.co.uk .