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14 October 2019
Issue: 7859 / Categories: Legal News , Procedure & practice , Legal services , Fraud
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The extent of privilege

Legal advice privilege continues until and unless it is waived by the client or removed by statute, the Court of Appeal has held in a landmark case.

Addlesee & Ors v Dentons Europe [2019] EWCA Civ 1600 concerned negligence proceedings brought against Dentons by the investor in a scheme marketed by a Cypriot company that later dissolved. The company was advised by Salans, which has since been renamed Dentons Europe. The investor claimed the scheme was a fraud and sought disclosure of documents passed between Salans and the company, which were privileged at the time of communication. A court held that the privilege attached to the documents remains in place even though the company no longer exists.

On appeal, the investor reiterated its argument that privilege is a right solely for an identifiable client and the client’s successors in title. No third party was entitled to assert it. Where no legal person has a right to privilege, the right ceases to exist and the court cannot enforce it. Dentons argued that privilege continued unless waived by the client or overridden by statute.

Delivering his judgment, Lord Justice Lewison said: ‘The rationale for the privilege means that privilege comes into existence at the time when the person in question consults his lawyer. The client must be sure at the time when he consults his lawyer, that, without his consent, there are no circumstances under which the privileged communications will be disclosed without his consent.’

Lewison LJ said the investor’s arguments would amount to a ‘retrospective redrawing of the boundaries of legal advice privilege’. He clarified that his judgment referred only to legal advice privilege not litigation privilege.

MOVERS & SHAKERS

Gateley Legal—Jack Kelly

Gateley Legal—Jack Kelly

Gateley Legal expands Midlands residential development team

Gibson Dunn—Richard Surtees

Gibson Dunn—Richard Surtees

Gibson Dunn adds employee benefits and executive compensation practice in London with partner Richard Surtees

Laytons ETL—Alec Cameron

Laytons ETL—Alec Cameron

Laytons ETL appoints new partner and head of intellectual property disputes

NEWS
A series of recent decisions has clarified important principles across property law, from perpetuities to lease renewals and public rights over land
Employers cannot rely on wellbeing services alone to defend workplace stress claims after a High Court decision awarding almost £1m to an overworked employee
Andy Burnham's brand of 'Manchesterism' could offer fresh thinking on legal aid and access to justice if it reaches Westminster, according to Roger Smith, NLJ columnist and former director of JUSTICE
The constitutional fallout from a change of prime minister, rather than the politics, is under scrutiny as questions arise over the limits of executive authority in a leadership transition
The legal profession is undergoing a fundamental shift from selling services to creating technology-enabled products, according to Professor Luke Mason, Head of School of Law at Regent's University London
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