“Wilmer Hale’s Washington DC office was instructed to advise RBS (including in the UK and in Connecticut) in respect of the first of these two investigations – Project Mortar. Without waiving privilege, Wilmer Hale’s work in respect of this Project involved collecting relevant factual information from employees and former employees of RBS based in the United States of America and Europe. This information was collected for the purposes of advising RBS on their response to the two SEC subpoenas. Whilst Wilmer Hale were primarily responsible for advising RBS, RBS also instructed Travers Smith LLP in England… … …in order to collect the factual information necessary to advise RBS, interviews were conducted with certain current and former RBS employees. These interviews were carried out by Wilmer Hale in the US…and by Travers Smith (sometimes accompanied by a member of Wilmer Hale’s team) and RBS Group Secretariat in the UK. The interviews carried out by Travers Smith and RBS Group Secretariat were conducted on the instructions and under the supervision of Wilmer Hale. I note for completeness that Dickstein Shapiro conducted the interview of Victor Hong in New York and that the prior internal review was conducted by RBS’s US legal team in Connecticut.”
“an internal confidential document, not being a communication with a third party, which was produced or brought into existence with the dominant purpose that it or its contents be used to obtain legal advice is privileged from production. The purpose must be that of the author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence. These internal documents were privileged because they had been prepared for the dominant purpose of obtaining legal advice.”
“…the continuing process of producing drafts or information required by the legal advisers to enable them to give advice to the Bank on the form of its submissions, evidence and responses to the Inquiry.”
“…not regard [his] decision as breaking any new ground…[it seeming to him]…likely that privilege has routinely been claimed and probably never challenged in relation to precisely similar or analogous exercises conducted in relation to statutory inquiries and other non-adversarial proceedings.”
“It is only on somewhat unusual facts and in the light of exceptionally cogent evidence that the dominant purpose test has in this case been satisfied in relation to a very considerable number of documents.”
“…but I cannot think that that ought to be held to apply to information which a principal asks his agent to give respecting the matters which the agent has done for and on account of the principal. That is information respecting matters which in point of law are the acts of the principal himself, and it is information respecting matters as to which the knowledge of the agent is the knowledge of the principal. In point of law, the principal is to be deemed to have known the facts before he has actually got personal information about them. I cannot but think that, as you are entitled to ask the principal what he knows respecting those facts, you must necessarily be entitled to the information which his agent has sent respecting them.”
“It is said that as communications between a client and his legal advisers for the purpose of obtaining legal advice are privileged, therefore any communications between the representatives of the client and the solicitor must be also privileged. That is a fallacious use of the word ‘representatives’. If the representative is a person employed as an agent on the part of the client to obtain the legal advice of the solicitor, of course he stands in exactly the same position as the client as regards protection, and his communications with the solicitor stand in the same position as the communications of his principal with his solicitor. But these persons were not representatives in that sense. They were representatives in this sense, that they were employed on behalf of the clients, the defendants, to do certain work, but that work was not the communicating with the solicitor to obtain legal advice. So their communications cannot be protected on the ground that they are communications between the client by his representatives and the solicitor. In fact, the contention of the [Banks] comes to this, that all communications between a solicitor and a third person in the course of his advising the client are to be protected. It was conceded that there was no case that went that length, and the question is whether, in order fully to develop the principle with all its reasonable consequences, we ought to protect such documents. Hitherto such communications have only been protected when they have been in contemplation of some litigation, or for the purpose of giving advice or obtaining evidence with reference to it. And it is reasonable, because then the solicitor is preparing for the defence or bringing the action, and all communications he makes for that purpose, and the communications made to him for the purpose of giving him the information, are, in fact, the brief in the action, and ought to be protected. But here we are asked to extend the principle to a very different class of cases, and it is not necessary, in order to enable persons freely to communicate with their solicitors and obtain their advice, that any privilege should be extended to communications such as these.”
“The Court of Appeal concluded that the Bank is not entitled to privilege in any of the four categories summarised above and expressed the view that if the Governor himself of the Bank of England had noted down what he remembered in relation to the supervision of BCCI with the intention of giving it to the BIU for transmission to Freshfields, such a document would not be subject to legal advice privilege. Longmore LJ accepted the submission by Mr Pollock that on the evidence before the court … the BIU, which was established to deal with inquiries and to seek and receive Freshfields’ advice, is for the purposes of this application, the client rather than any single officer however eminent he or she may be. It follows that no separate consideration need be given to the position of ex-employees who are, obviously, in no better position for the purpose of any claimed privilege.’”
“it was only communications between solicitor and client, and evidence of the content of such communications, that were privileged. Preparatory materials obtained before such communications, even if prepared for the dominant purpose of being shown to a client’s solicitor, even if prepared at the solicitor’s request and even if subsequently sent to the solicitor, did not come within the privilege.” (2) Lord Carswell interpreted the decision in the following terms at §72: “The Court accepted that Freshfields’ client was the BIU, not the Bank itself or any individual officer, but its conclusions did not turn so much on the identity of the authors of the documents in question as on the more general point that in the court’s view legal advice privilege, as distinct from litigation privilege, was restricted to communications between a client and his legal advisers, to documents evidencing such communications, and to documents that were intended to be such communications even if they were not in fact communicated… It rejected the Bank’s argument that communications from an employee were so covered, even though it recognised that a corporation can only act through its employees.”
“[Three Rivers (No 5)] does not lay down a general principle that all communications between a company and its legal advisers must be made by a specially appointed committee or that no communication made by an employee to the company’s legal adviser is privileged. In that case, the English Court of Appeal held…that ‘the BIU, which was established to deal with inquiries and to seek and receive Freshfields’ advice, is for the purpose of this application, the client rather than any single officer however eminent he or she may be (including presumably, the Governor of the Bank of England)’. Implicit in this finding would be that only the BIU was authorised to communicate with the Bank of England’s lawyers. No other employee was authorised, including the Governor. The principle is that if an employee is not authorised to communicate with the company’s solicitors for the purpose of obtaining legal advice, then that communication is not protected by legal advice privilege. We do not find this principle exceptional. When a company retains solicitors for legal advice, the client must be the company. But since a company can only act through its employees, communications made by employees who are authorised to do so would be communications made ‘on behalf of his client’. The only relevant issue is whether the communication is made for the purpose of obtaining legal advice, and if so, the communication falls within the privilege, provided that other requirements of the privilege are present, viz, that the communications are confidential in nature, and the purpose of the communication is for the purpose of seeking legal advice. Authorisation need not be express: it may be implied, if that function is related to or arises out of relevant employee’s work. In our view, Three Rivers (No 5) should be read in the context of the court’s finding that the BIU (and no one else) was authorised to communicate with the bank’s solicitors.”
“In my judgment, none of these attendance notes can be the subject of legal advice privilege. They do not fall within the generally understood confines of legal advice privilege, even as extended by Balabel Air v India, because it is not apt to cover an information gathering exercise of the type which will normally be conducted in relation to litigation but undertaken before a dispute is reasonably in contemplation.”
“By contrast, where there is no dispute, the review of a contract by seeking information from employees, and former employees, is unlikely, in most circumstances, to be protected by legal advice privilege. In one sense this conclusion is a surprising one because it might be though [sic] that the involvement of lawyers in the review clothes the review in privilege. But that is not the legal position if the lawyers are obtaining information from persons who are, for these purposes, third parties because they are not ‘the client’.”
“In Three Rivers (No 5) the Court of Appeal held that, in the case of a corporate client, in relation to ‘legal advice privilege’ the privilege could not attach to communications to the legal adviser by either employees who were not part of the directing mind and will of ‘the client’ or by others who were not ‘the client’.”
“giving [the party requesting disclosure] a clue to the advice which had been given by the solicitor and giving them the benefit of the professional opinion which had been formed by the solicitor.”
“I do not accept the proposition that underlining or highlighting of documents would, in themselves, give rise to legal professional privilege. The appropriate test to apply is that of whether or not the markings in question would ‘give a clue’ to the trend of advice being proffered to the clients by the lawyers.”
“a record of a non-privileged conversation, whether in the form of a verbatim note or a transcript, cannot itself be privileged if the underlying conversation was not privileged.”
“Had that record formed part of a communication to the client, or had it contained [the solicitor’s] analysis of, or views upon, his client’s case, the defendant’s contention might have some substance…”
“The cases demonstrate that the English courts apply the simple rule under English conflict of law rules that it is the lex fori that applies to determine whether a communication is privileged.”
“The basis for the general rule that the lex fori applies has never been properly explained or analysed by the courts.”
“Save where to do so would be contrary to English public policy, the English court should apply the law of the jurisdiction with which the engagement or instructions, pursuant to which the documents came into existence or the communications arose, are most closely connected.”
“A question has been raised as to whether the privilege in the present case is an English or a Scotch privilege; but sitting in an English Court, I can only apply the English rule as to privilege, and I think that the English rule as to privilege applies to a Scotch solicitor and law agent practising in London, and therefore the letters in question are privileged from production.”
“It has not been easy for the conflicts of laws to adapt itself to the changes in social and commercial life which the 20th century has witnessed. Many of its rules were first laid down in the 19th century and seem better suited to 19th century conditions than those of the 20th century.”
“The general principle is founded upon this, that the exigencies of mankind require that in matters of business, which may lead to litigation, men should be enabled to communicate freely with their professional advisers, and their communications should be held confidential and sacred, and that none should have the right to their production. The reason is that the exigencies of mankind require it…”
“Raychem do not suggest that under English law privilege is lost in England because privilege cannot be claimed for documents in another country.”
“To suggest otherwise would mean that a court, when deciding whether to uphold a claim for privilege, would need to be informed as to whether privilege could be claimed in all the countries of the world. ‘Our system of civil procedure is founded on the rule that the interests of justice are best served if parties to litigation are obliged to disclose and produce for the other party’s inspection all documents in their possession, custody or power relating to the issues in the action.’ (See Ventouris v Mountain, The Italia Express[1991] 3 All ER 472 at 476,[1991] 1 WLR 607 at 611 per Bingham LJ.) Privilege is an exception to that rule justified on the ground of public interest. It involves a right to keep confidential the document and the information in it. The fact that under foreign law the document is not privileged or that the privilege that existed is deemed to have been waived is irrelevant. The crucial consideration is whether the document and its information remain confidential in the sense that it is not properly available for use. If it is, then privilege in this country can be claimed and that claim, if properly made, will be enforced.”
“As for the ruling in the US courts and the Australian courts that privilege has been waived, that depends on the domestic law of those countries as interpreted and applied by their courts.”
“when the question arises in English proceedings, the rule is that the question of whether or not a document is privileged is to be determined by English law, for reasons which are partly practical (see Bourns v Raychem Corp….” and accordingly: “there was no reason…for [him] to decide whether or not the draft Complaint (and accompanying communications) would actually be privileged under New York law.”
“where a party resists production of a selection made from own client documents, it is a matter for the court’s discretion whether to order production.”
“A person who wishes to claim that he has a right or a duty to withhold inspection of a document, or part of a document, must state in writing – (a) That he has such a right or duty; and (b) The grounds on which he claims that right or duty.” (a) That he has such a right or duty; and (b) The grounds on which he claims that right or duty.”
“[the party seeking disclosure’s] argument appeared to assume that there was no choice between a finding of legal professional privilege and an order of immediate disclosure and inspection. In my judgment, this is not so. The process of discovery is not an uncontrollable juggernaut… … In Science Research Council v Nasse[1980] AC 1028 the House of Lords and in Dolling-Baker v Merrett[1990] 1 WLR 1205 the Court of Appeal made plain that production and inspection are not automatic once relevance and the absence of entitlement to privilege are established. While the court’s ultimate concern must always be to ensure the fair disposal of the cause or matter, it need not be unmindful of other legitimate concerns nor is it powerless to control the terms upon which production and inspection may be ordered.”