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01 December 2017 / Mark Hall , Jan-Jaap Baer
Issue: 7772 / Categories: Features , Procedure & practice
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Legal advice privilege: a search for clarity?

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Jan-Jaap Baer & Mark Hall review recent developments in the law of privilege

  • The current restrictive approach to privilege poses real challenges to lawyers when seeking to investigate issues raised by corporate clients without creating documents that will be subsequently disclosable to regulators or litigants.
  • Increasing difficulties in claiming privilege may make it harder to persuade employees to fully co-operate in investigations.

Since 2004 the leading authority on legal advice privilege has been the much criticised Court of Appeal decision in Three Rivers (No 5) [2003] EWCA Civ 474, [2003] QB 1556, which gave a restrictive interpretation as to who is the ‘client’ in the corporate context. Several recent court decisions have confirmed this narrow approach and may suggest a trend towards yet further erosion in the ability to claim both legal advice and litigation privilege.

Who is the client?

Legal advice privilege applies to confidential communications passing between a client and the client’s lawyer which have come into existence for the purpose of giving or receiving legal advice or assistance in a relevant legal context. In Three Rivers

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NEWS
Talk of a reserved ‘Welsh seat’ on the Supreme Court is misplaced. In NLJ this week, Professor Graham Zellick KC explains that the Constitutional Reform Act treats ‘England and Wales’ as one jurisdiction, with no statutory Welsh slot
The government’s plan to curb jury trials has sparked ‘jury furore’. Writing in NLJ this week, David Locke, partner at Hill Dickinson, says the rationale is ‘grossly inadequate’
A year after the $1.5bn Bybit heist, crypto fraud is booming—but so is recovery. Writing in NLJ this week, Neil Holloway, founder and CEO of M2 Recovery, warns that scams hit at least $14bn in 2025, fuelled by ‘pig butchering’ cons and AI deepfakes
After Woodcock confirmed no general duty to warn, debate turns to the criminal law. Writing in NLJ this week, Charles Davey of The Barrister Group urges revival of misprision or a modern equivalent
Family courts are tightening control of expert evidence. Writing in NLJ this week, Dr Chris Pamplin says there is ‘no automatic right’ to call experts; attendance must be ‘necessary in the interests of justice’ under FPR Pt 25
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