“… communications between parties or their solicitors and third parties for the purpose of obtaining information or advice in connection with existing or contemplated litigation are privileged, but only when the following conditions are satisfied: (a) litigation must be in progress or in contemplation; (b) the communications must have been made for the sole or dominant purpose of conducting that litigation; (c) the litigation must be adversarial, not investigative or inquisitorial.”
“… After examining the authorities in detail, Taylor LJ said, at p 330 [in Balabel v Air India[1988] Ch 317 (“ Balabel ”)]: “Although originally confined to advice regarding litigation, the privilege was extended to non-litigious business. Nevertheless, despite that extension, the purpose and scope of the privilege is still to enable legal advice to be sought and given in confidence. In my judgment, therefore, the test is whether the communication or other document was made confidentially for the purposes of legal advice. Those purposes have to be construed broadly. Privilege obviously attaches to a document conveying legal advice from solicitor to client and to a specific request from the client for such advice. But it does not follow that all other communications between them lack privilege. In most solicitor and client relationships, especially where a transaction involves protracted dealings, advice may be required or appropriate on matters great or small at various stages. There will be a continuum of communication and meetings between the solicitor and client ... Where information is passed by the solicitor or client to the other as part of the continuum aimed at keeping both informed so that advice may be sought and given as required, privilege will attach. A letter from the client containing information may end with such words as ‘please advise me what I should do’. But, even if it does not, there will usually be implied in the relationship an overall expectation that the solicitor will at each stage, whether asked specifically or not, tender appropriate advice. Moreover, legal advice is not confined to telling the client the law; it must include advice as to what should prudently and sensibly be done in the relevant legal context .”
“It follows from this analysis that those dicta in the decided cases which appear to extend privilege without limit to all solicitor and client communications upon matters within the ordinary business of a solicitor and referable to that relationship are too wide. It may be that the broad terms used in the earlier cases reflect the restricted range of solicitors’ activities at the time. Their role then would have been confined for the most part to that of lawyer and would not have extended to business adviser or man of affairs. To speak therefore of matters ‘within the ordinary business of a solicitor’ would in practice usually have meant the giving of advice and assistance of a specifically legal nature. But the range of assistance given by solicitors to their clients and of activities carried out on their behalf has greatly broadened in recent times and is still developing. Hence the need to re-examine the scope of legal professional privilege and keep it within justifiable bounds.”
“It is axiomatic that the burden of proving privilege falls on the party claiming it. The relevant principles are found in West London Pipeline v Total[2008] EWHC 1729 (Comm) per Beatson J (as he then was) at §86. In particular: (1) A claim for privilege is an unusual claim in that the party claiming privilege and their legal advisers are judges in their own case, subject of course to the power of the Court to inspect the documents. (2) For that reason, the Court must be particularly careful to consider the basis on which the claim for privilege is made. (3) Evidence filed in support of a claim to privilege should be as specific as possible without making disclosure of the very matters that the claim for privilege is designed to protect.”
“18. In his witness statement of9 June 2014 , the partner made clear at the outset of his account that his firm was no longer instructed by or on behalf of the Defendant; that his firm had no financial or commercial interest in the outcome of the dispute; and that their only interest was to adhere to their professional obligations. It seems to me that he has been scrupulously careful in treading a delicate path. 19. The witness statement contained the following evidence: "4. In case it should assist, I will summarise the position at the outset. At all times during our retainer by the Client, circumstances of confidentiality surrounded his name. He communicated his identity confidentially for the purpose of being advised by my firm and gave express instructions that he retained my firm on condition that his identity should be kept confidential and should not be disclosed. I have taken the view at all times that disclosure of the client's name would have the practical effect of disclosing confidential communications between lawyer and client. In other words, unlike the vast majority of cases, the identity of the client was not a routine communication but it was the very information which linked him to the case and potential liability to the Claimant. In effect, the advice he sought was inextricably bound up with his anonymity. 5. The outline circumstances of the instruction were as follows. I had an exploratory meeting with a person using a pseudonym on2 April 2014 . In the particular circumstances of the proposed instructions, it was thought better that I used this pseudonym at all times. I gained a broad understanding of the issues in these proceedings. I understood that there had been ongoing communications on a without prejudice basis between him and Osborne Clarke during which he had remained anonymous. Significant progress had been made towards agreement and he thought that agreement could be achieved. His concern was that getting close to an agreement he needed the assistance of a lawyer to ensure that he did not get caught out with the legal meaning of any document that was concluded. This was especially as he recognised that he was up against experienced lawyers. There had been very recent exchanges of email between him and Osborne Clarke. The reason for the urgency was that, as he understood the position, proceedings had to be served by3 April 2014 i.e. the following day and therefore pressure was being put upon him to conclude the matter very quickly. His express instruction to me was that, should I agree to act, his identity should remain strictly confidential. 6. I looked at the paperwork showing the state of the without prejudice discussions and noted his desire to resolve the matter. The Client was keen to know whether I thought I could assist in the delicate circumstances facing him. I am an experienced negotiator and also an experienced mediator. Given the Client's determination to resolve the matter and the confidential details that he disclosed to me, the progress which had already been made in the discussions and assuming good faith all round, I thought that I could usefully assist and that it was likely that I could help him achieve an agreement on the basis required by him which, in particular, would involve the non-disclosure of his identity to the Claimant. 7. During the meeting the Client disclosed what I believe to be his true identity to me. He could not have made it clearer that he was doing so in the strictest confidence and for the purpose only of obtaining my advice and assistance. I took appropriate measures within the firm to maintain his anonymity." 20. Despite his best efforts, the solicitor told me that he was unable to achieve a meaningful solution which he could recommend to the Defendant. He discussed matters with him and noted that he had concerns about continuing to fund the matter. The instructions were terminated on 8 May of this year. … 21. If Mr Davies is correct in his submission that … the communication of the information in question (i.e. the Defendant's identity) was the subject of legal professional privilege, then that would be an end of the matter. It would be an "absolute" protection …. … 27. I have come to the conclusion, in the light of the circumstances of this unusual case, and in particular the evidence given by his solicitor, that the information as to the Defendant's identity was indeed the subject of legal professional privilege and thus protected (whether "absolutely" or according to settled practice). Even if it were not, there are powerful reasons not to override the duty of confidence. It was not simply a piece of neutral background information, as would generally be the case with a client's name, since both he and his solicitor were well aware that the Claimant was keen to establish his identity (for perfectly legitimate reasons): it was accordingly central to their discussions about the retainer that confidentiality should be maintained.”