JSC BTA Bank v Shalabayev and another [2011] EWHC 2915 (Ch), [2011] All ER (D) 94 (Nov)
It was well established that if a communication or document qualified for legal professional privilege, that privilege was absolute. It could not be overridden by a supposedly greater public interest. It could be waived by the person entitled to it, and it could be overridden by statute but otherwise it was absolute.
There was no balancing exercise that had to be carried out. Although the possibility existed that, without waiving the privilege, a person could nonetheless indirectly forfeit the right to claim privilege, such as, for example, if the person had been given every chance to claim privilege within a reasonable period, and had failed to do so, the court should be very wary of allowing a potentially valid claim to privilege, however late it was made, to be indirectly overridden by the exercise of a case management power. Otherwise, there was a danger of a litigant’s substantive right to legal privilege being forced to yield, indirectly, to just the kind of balancing exercise the that the highest authority had
