Court of Appeal confirms identity of those instructing lawyers not generally protected by litigation privilege

The Court of Appeal has held that the identity of those instructing lawyers on behalf of a corporate client are not generally protected by litigation privilege: Loreley Financing (Jersey) No 30 Ltd v Credit Suisse Securities (Europe) [2022] EWCA Civ 1484.

The court rejected the notion that litigation privilege protects all information falling within a “zone of privacy” around a party’s preparation for litigation. Instead, it emphasised that privilege attaches to communications (including secondary evidence of those communications) rather than information or facts divorced from them. Accordingly, there is no general principle that the identity of those giving instructions to a lawyer for the purposes of litigation will be protected.

The court recognised an exception, where the disclosure of the relevant individual’s identity would inhibit candid discussion with the lawyer and therefore affect the client’s ability to prepare its case – eg because it might tend to reveal something about the content of the communication with the lawyer or the litigation strategy being discussed. But that would have to be explained as the basis for the claim to privilege.

For more information on the decision, please see our Litigation Notes blog.