ASSERTING LEGAL PROFESSIONAL PRIVILEGE AFTER ‘RBS’ AND ‘ENRC’
The principle of legal professional privilege came into being in order to ensure that a client is able to consult their lawyer in confidence. The privilege is split into two: legal advice privilege and litigation privilege. If information is privileged, the client may resist its disclosure and it is in this context that both legal advice privilege and litigation privilege have recently been examined in The RBS Rights Issue Litigation [2016] (RRIL) and The Director of the Serious Fraud Office v Eurasian Natural Resources Corporation Ltd [2017] (ENRC). In both cases, privilege has been very tightly confined, leading to orders for disclosure of documents that the parties likely did not foresee and which they certainly would not have wanted. It is therefore important to look at the judgments in each case in order to understand what information may ultimately be disclosable and, insofar as possible, what steps may be taken to ensure privilege may successfully be asserted.
RRIL and legal advice privilege
In RRIL, the claimants sought disclosure of transcripts, notes and other records of interviews conducted by or on behalf of RBS as part of investigations carried out prior to commencement of the claim. RBS resisted disclosure of the interview notes claiming that they were subject to legal advice privilege, alternatively that the interview notes were lawyers’ privileged working papers. No claim was made to litigation privilege.
Oct-Dec 2017 issue
Peters & Peters Solicitors LLP