Handy client guide to privilege:
Documents evidencing privileged communications

It has long been established, and was accepted in Three Rivers No 5, that legal advice privilege applies to evidence of privileged communications – ie documents or other communications (or parts of either) which reveal the content of lawyer / client communications, even if they are not themselves lawyer / client communications.

Similarly, a document or communication which evidences the content of another communication that is subject to litigation privilege (as opposed to legal advice privilege) will be privileged even if it does not itself meet the test for litigation privilege, ie it was not created for the dominant purpose of litigation in reasonable prospect.

Redaction

Where an entire document or communication evidences a privileged communication, the entirety can be withheld. Where only part of the document or communication evidences the privileged communication, that part should be redacted and the remainder disclosed (assuming the remainder meets the applicable test for disclosure in the particular context, eg if the context is standard disclosure in litigation, whether it supports or adversely affects any party’s case).

Is inference enough?

There are conflicting High Court decisions on whether, in order to “evidence” a privileged communication, it is enough that the later document or communication allows the substance of the privileged communication to be inferred. In Financial Services Compensation Scheme Ltd v Abbey National Treasury Services plc [2007] EWHC 2868 (Ch), (“FSCS“) the court said that privilege does not attach to documents which merely allow the advice to be inferred, unless perhaps the inference is “obvious and inevitable, in which case the document is in substance a statement of the advice or communication”. The court in that case said the question is whether the privileged communication is reproduced, summarised or paraphrased.

In contrast, in In the matter of Edwardian Group Ltd [2017] EWHC 2805 (Ch), the court declined to follow the decision in FSCS, which it considered to be inconsistent with other authorities to the effect that documents will be privileged if they “give a clue to” or “betray the trend of” legal advice. The court concluded that those authorities should be applied instead. This does not mean, however, that privilege can be claimed for any document which supports an inference – however indirect – about the substance of legal advice. The contents of the document must provide a “definite and reasonable foundation” for the suggested inference. It is not enough that the document would prompt speculation about the advice: see “High Court finds privilege applies to documents from which the substance of legal advice can be inferred” (27 November 2017).

Lawyers’ working papers

It has long been accepted that privilege will also apply to lawyers’ working papers, as otherwise the protection of privilege could easily be undermined. Decisions in recent years have however applied the principle relatively narrowly, finding that lawyers’ notes of non-privileged interviews were not privileged on this basis. The decisions emphasise that lawyers’ working papers will be privileged if (and only if) they would betray the trend of the legal advice. On this approach, it is not sufficient that the notes contain the lawyers’ mental impressions or reveal their train of enquiry – see RBS Rights Issue Litigation [2016] EWHC 3161 (Ch), considered in “High Court applies narrow interpretation of ‘client’ for purposes of legal advice privilege” (8 December 2016) and SFO v Eurasian Natural Resources Corporation Ltd [2017] EWHC 1017 (QB) (“ENRC“), considered in “High Court decision takes restrictive approach to both litigation privilege and legal advice privilege” (11 May 2017).

This issue was not addressed by the Court of Appeal in its decision in the ENRC case [2018] EWCA Civ 2006, considered in “Court of appeal decision in ENRC: orthodoxy restored on litigation privilege but narrow interpretation of client remains for now” (5 September 2018).

Note: Content up to date as at 9 February 2024