Court Of Appeal Confirms 'Once Privileged, Always Privileged' Unless Privileged Is Waived – Even If There Is No Longer Anyone Who Can Assert The Privilege

Author:Ms Anna Pertoldi, Maura McIntosh and Jan O'Neill
Profession:Herbert Smith Freehills
 
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The Court of Appeal has confirmed that the documents of a dissolved company remain privileged, regardless of whether there is anyone who can assert the company's privilege: Addlesee v Dentons Europe LLP [2019] EWCA Civ 1600.

The decision establishes that, once a privileged communication comes into existence, that privilege is absolute and remains intact unless and until it is waived by a person entitled to do so. This illustrates the strength of the principle "once privileged, always privileged", which is based on the public policy underlying privilege – that is, the need for a client to be confident, when consulting a lawyer, that the privileged communications will never be disclosed without the client's consent.

Although the point was not in issue in the present case, the decision may be said to bolster the protection given to documents in a litigating party's possession which are subject to a third party's privilege – so for example where the litigating party has received the documents under a limited waiver of privilege. The reasoning in this case would appear to suggest that the court must respect the privilege unless and until the privilege holder has waived it, regardless of whether it has come forward to assert it.

It is worth noting that the Court of Appeal states in its judgment that it is concerned only with legal advice privilege, rather than litigation privilege. The decision may therefore leave open an argument that the position is different for documents subject to litigation privilege – although the court does note that the two forms of privilege have a common purpose, though their scope is different.

Background

The background is summarised in our blog post on the first instance decision. Briefly, the claimant investors invested in an allegedly fraudulent scheme marketed by a Cypriot company (the "Company") which was represented by the defendant solicitors. The Company was dissolved in January 2016 and, in May 2016, the claimants issued the present proceedings against the defendant solicitors claiming damages for deceit or negligence in relation to their involvement in the scheme.

The claimants sought access to documents in the defendant's client files which the defendant said were subject to the Company's legal advice privilege. To the extent that any rights relating to the documents passed to the Crown as bona vacantia, the Crown disclaimed all interest in them "without either asserting or waiving any legal professional...

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