“… 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 … 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. None of the four categories of documents concerned in the appeal came within that description and accordingly they were not covered by privilege.”
“We therefore conclude that the Bank is not entitled to privilege in any of the four categories itemised at the beginning of this judgment. Mr Stadlen asked what the position would be if the Governor himself 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. No privilege has been claimed for any such specific document but, as it seems to us, Mr Pollock was right to say 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 purpose 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 claim to privilege.”
“Mr Pollock QC, for the appellants, has made clear in his submissions that disclosure is not sought of documents passing between the BIU and Freshfields or vice versa, nor is disclosure sought of any of Freshfields’ internal memoranda or drafts. He accepted that the BIU was, for the purpose of the inquiry, the client of Freshfields and that communications passing between them are covered by legal advice privilege. But he submitted that documents prepared by the Bank’s employees or ex-employees, whether prepared for submission to or at the direction of Freshfields or not, should be disclosed as being no more than raw material on which the BIU would, thereafter, seek advice.”
“The evidence isolated and the judge dealt with 4 separate categories of such documents; he asked himself the following questions: (1) Does legal advice privilege extend to documents prepared by Bank employees, which were intended to be sent to and were in fact sent to Freshfields? (2) Does it extend to documents prepared by Bank employees with the dominant purpose of the Bank’s obtaining legal advice but not, in fact, sent to Freshfields (though, perhaps, their effect was incorporated into documents that were so sent)? (3) Does it extend to documents prepared by Bank employees, without the dominant purpose of obtaining legal advice, but in fact sent to Freshfields? (4) Are the answers to (1), (2) and (3) above any different if the documents were prepared by Bank employees who are now (viz. as at11th March 2003 ) ex-employees of the Bank? It is accepted that some, at any rate, of the material sought could be highly relevant to the litigation eg, the first memorandum or statement of an officer intimately concerned in the supervision of BCCI.”
“Mr Stadlen submitted that these passages from the judgments of Cockburn CJ and Brett LJ showed that, if documents were prepared the contents of which were to be made known to a solicitor for the purpose of his giving advice, it did not matter that they were not submitted to him. It followed that, even the documents in category (2) set out in paragraph 4 above were privileged. However that does not address the question whether memoranda or documents, produced to the Bingham Inquiry Unit by Bank employees, are, in general, privileged at all. That question is not settled by these citations; it is fair to say that the judgment of Cockburn CJ is in general terms which might arguably encompass legal advice privilege as well as litigation privilege but it is quite clear that the ‘rule’ identified and addressed by Brett LJ is the rule relating to litigation privilege and that he is not talking of legal advice privilege in any way.”
“Here Cotton LJ, unlike in his judgment in Southwark v Quick, considers each of the two categories of legal professional privilege and decides in terms that the documents in question do not fall within the first category because they are not communications between solicitor and client and not within the second category because litigation is not contemplated. This case thus makes clear that legal advice privilege does not extend to documents obtained from third parties to be shown to a solicitor for advice. Mr Stadlen, of course, accepts this but says that communications from an employee are different. The reason he gives is that a corporation can only act through its employees; while that is true, it is not a consideration that can carry Mr Stadlen home. Indeed the passage cited from Anderson shows that information from an employee stands in the same position as information from an independent agent. It may, moreover, be a mere matter of chance whether a solicitor, in a legal advice privilege case, gets his information from an employee or an agent or other third party. It may also be problematical, in some cases, to decide whether any given individual is an employee or an agent and undesirable that the presence or absence of privilege should depend upon the answer.”
“On any natural view of the matter the dominant purpose of obtaining the information which employees and ex-employees could give to the Bingham inquiry was merely to present that evidence to the inquiry. …”
“We recognise that no specific argument was addressed to us on this matter. Having reflected upon it, we have come to the conclusion that there can be no relevant legal distinction between material generated at the early stage of preparing the submission to Lord Justice Bingham and material generated in response to requests from him. All such material is, in our judgment, prepared for the dominant purpose of putting relevant factual material before the inquiry in an orderly and attractive fashion, not for the dominant purpose of taking legal advice upon such material.”
“As stated, however, we do not, in any event, consider that privilege extends to any of the documentation or internal memoranda of the Bank’s employees …”
“If it were confined to proceedings begun or in contemplation, then every communication would be unprotected which a party makes with a view to his general defence against attacks which he apprehends, although at the time no one may have resolved to assail him. But were it allowed to extend over such communications, the protection would be insufficient, if it only included communications more or less connected with judicial proceedings; for a person oftentimes requires the aid of professional advice upon the subject of his rights and his liabilities, with no references to any particular litigation, and without any other reference to litigation generally than all human affairs have, in so far as every transaction may, by possibility, become the subject of judicial inquiry. … The foundation of this rule is not difficult to discover. It is not (as has sometimes been said) on account of any particular importance which the law attributes to the business of legal professors, or any particular disposition to afford them protection, though certainly it may not be very easy to discover why a like privilege has been refused to others, and especially to medical advisers. But it is out of regard to the interests of justice, which cannot be upholden, and to the administration of justice, which cannot go on, without the aid of men skilled in jurisprudence, in the practice of the Courts, and in those matters affecting rights and obligations which form the subject of all judicial proceedings. If the privilege did not exist at all, every one would be thrown upon his own legal resources; deprived of all professional assistance, a man would not venture to consult any skilful person, or would only dare to tell his counsellor half his case. If the privilege were confined to communications connected with suits begun, or intended, or expected, or apprehended, no one could safely adopt such precautions as might eventually render any proceedings successful, or all proceedings superfluous.”
“It is apparent from this lengthy extract that the privilege stemmed from the confidential relationship of client and solicitor and attached only to communications between the client and solicitor.”
“… I must refuse so much of the motion [for production] as relates to the documents alleged to be privileged; I have anxiously examined the subject, and arrived at a conclusion, which to me has seemed right; but it has not been approved, and I have no doubt, that, if I were to order the production of these documents, the order would be reversed elsewhere. The unrestricted communication between parties and their professional advisers, has been considered to be of such importance as to make it advisable to protect it even by the concealment of matter without the discovery of which the truth of the case cannot be ascertained.”
“Mr Stadlen submitted that these passages from the judgments of Cockburn CJ and Brett LJ showed that, if documents were prepared the contents of which were to be made known to a solicitor for the purpose of his giving advice, it did not matter that they were not submitted to him. It followed that, even the documents in category (2) set out in paragraph 4 above were privileged. However that does not address the question whether memoranda or documents, produced to the Bingham Inquiry Unit by Bank employees, are, in general, privileged at all. That question is not settled by these citations; it is fair to say that the judgment of Cockburn CJ is in general terms which might arguably encompass legal advice privilege as well as litigation privilege but it is quite clear that the ‘rule’ identified and addressed by Brett LJ is the rule relating to litigation privilege and that he is not talking of legal advice privilege in any way”
“Here Cotton LJ, unlike in his judgment in Southwark v Quick, considers each of the two categories of legal professional privilege and decides in terms that the documents in question do not fall within the first category because they are not communications between solicitor and client and not within the second category because litigation is not contemplated. This case thus makes clear that legal advice privilege does not extend to documents obtained from third parties to be shown to a solicitor for advice. Mr Stadlen, of course, accepts this but says that communications from an employee are different. The reason he gives is that a corporation can only act through its employees; while that is true, it is not a consideration that can carry Mr Stadlen home. Indeed the passage cited from Anderson shows that information from an employee stands in the same position as information from an independent agent. It may, moreover, be a mere matter of chance whether a solicitor, in a legal advice privilege case, gets his information from an employee or an agent or other third party. It may also be problematical, in some cases, to decide whether any given individual is an employee or an agent and undesirable that the presence or absence of privilege should depend upon the answer.”
“By the end of the nineteenth century it was, therefore, clear that legal advice privilege did not apply to documents communicated to a client or his solicitor for advice to be taken upon them but only to communications passing between that client and his solicitor (whether or not through any intermediary) and documents evidencing such communications. … .”
“We, therefore, conclude that the nineteenth century authorities established that legal advice privilege was a well-established category of legal professional privilege, but that such privilege could not be claimed for documents other than those passing between the client and his legal advisers and evidence of the contents of such communications. Mr Stadlen made much play of the concession in the court below that it was not necessary for the communication to have actually been received before privilege could attach; if, for example, the sender of the communication had died before the communication had been sent to his legal adviser or the document concerned had been lost the privilege would still exist; but that concession is not inconsistent with the law as thus stated. If such a situation arose there would be no difficulty in saying that a document which was intended to be a communication between client and solicitor was still privileged even if not in fact communicated. That might be a modest extension of the principle but cannot be a foundation for the width of legal advice privilege which Mr Stadlen sought to maintain.”
“As to the question of who, for privilege purposes, was to be regarded as Freshfields’ client, the Court of Appeal said that information provided to solicitors by an employee stood in the same position as information provided by an independent third party (see [2003] QB at 1574 G/H) and, specifically, when considering whether information provided to Freshfields by the Governor of the Bank would have qualified for privilege, that ‘the BIU … is… the client rather than any single officer however eminent he or she may be’.”
“The Bank has now appealed to your Lordships. It is important to emphasise the narrowness of the actual issue. It is whether the communications between the BIU and Freshfields or counsel relating to the Inquiry are protected by legal advice privilege. The Bank plainly believe that the Court of Appeal order in Three Rivers (No 5) went too far. But the Bank’s petition for leave to appeal was refused and this is not an appeal against that order. Moreover the Bank has discharged the disclosure obligation required by that order. However, the narrow scope allowed by the Court of Appeal in the judgment now under appeal to ‘legal advice’ has heightened the concerns of many about the approach to legal advice privilege inherent in the first Court of Appeal judgment. …”
“The written submissions from the interveners, and particularly that from the Law Society, make clear their concern that the Three Rivers (No 5) Court of Appeal judgment may have gone too far in treating communications between Freshfields and employees of the Bank, other than the BIU, as being for privilege purposes communications between Freshfields and third parties. Your Lordships have been invited to clarify the approach that should be adopted to determine whether a communication between an employee and his or her employer’s lawyers should be treated for legal advice privilege purposes as a communication between the lawyers and their client. This is of particular importance for corporate clients, who can only communicate through employees or officers.”
“The employee/client point does not, however, arise as an issue on this appeal. … .”
“46. One of the matters debated at the Court of Appeal hearing that led to the Three Rivers (No 5) judgment was whether, or which, communications between Freshfields and the Bank employees or ex-employees, or officers or ex-officers, could qualify for legal advice privilege. It was accepted that communications between the lawyers and third parties could not qualify. The Court of Appeal held that only communications between Freshfields and the BIU could qualify. All other communications had to be disclosed. This is not an issue which arises for decision on this appeal but, for reasons which I have explained (see paras. 20 and 21), submissions have been made to your Lordships on the issue and your Lordships have been invited to express views on them. I think your Lordships should decline the invitation for a number of reasons. 47. First, the issue is a difficult one with different views, leading to diametrically opposed conclusions, being eminently arguable. Second, there is a dearth of domestic authority. Upjohn Co v United States (1981) 449 US 383 in the United States Supreme Court constitutes a valuable authority in a common law jurisdiction but whether (or to what extent) the principles there expressed should be accepted and applied in this jurisdiction is debatable. Third, whatever views your Lordships may express, and with whatever unanimity, the views will not constitute precedent binding on the lower courts. The guiding precedent on the issue will continue to be the Court of Appeal judgment in Three Rivers (No 5). Fourth, if and when the issue does come before the House (or a new Supreme Court) the panel of five who sit on the case may or may not share the views of your Lordships, or a majority of your Lordships, sitting on this appeal. Fifth, and finally, this House, represented by an Appeal Committee of three, refused leave to appeal against the Three Rivers (No 5) judgment. 48. For all these reasons I think your Lordships should refrain from expressing views on the issue. Nothing that I have said should be construed either as approval or disapproval of the Court of Appeal’s ruling on the issue in Three Rivers (No 5). The issue simply does not arise on this appeal.”
“… there are particular difficulties in identifying ‘the client’ to whose communications privilege should attach in the case of a large organisation such as the Bank or a Government Department. As the point does not arise for decision in this case, I agree, for the reasons given by Lord Scott of Foscote, that we should not express any views upon the matter.”
“We can fully accept that the Court of Appeal could have decided Three Rivers (No. 5) on the simple basis that Freshfields’ client was the BIU (not the Bank), and the documents had been prepared by the Bank (not the BIU), so that the position of the particular Bank employee who had prepared them was irrelevant to the question of legal advice privilege. We do not, however, think that, fairly read, that was the Court of Appeal’s reasoning. As we have explained, it seems to us that Longmore LJ reasoned that, because agents and employees, on authority, stood in the same position in relation to legal professional privilege, once it was established that only communications between the lawyer and the client, and not between the lawyer and an agent of the client, could attract legal advice privilege, communications between a lawyer and an employee of the client (other than employees specifically tasked with seeking and receiving legal advice) could also not be privileged. As we have said, we are not sure that it is necessary for us to determine whether this reasoning was the ratio decidendi , but if that did have to be decided, we would hold that it was.”
“The issue in Three Rivers (No 5) arose from the fact that many of those documents had been prepared not by the BIU but by other employees of the Bank. The claimants maintained that such documents did not fall within the ambit of legal advice privilege, and the Court of Appeal agreed, overturning the first instance decision of Tomlinson J.”
“Our conclusions under issues 1 to 3 make the question of legal advice privilege far less important. Since, however, the matter has been fully argued and the Law Society intervened to assist the court, we will say briefly how we would have determined these matters. As will be apparent from what we have already said, we would have determined that Three Rivers (No 5) decided that communications between an employee of a corporation and the corporation’s lawyers could not attract legal advice privilege unless that employee was tasked with seeking and receiving such advice on behalf of the client, as the BIU was in Three Rivers (No 5).”
“… large corporations need, as much as small corporations and individuals, to seek and obtain legal advice without fear of intrusion. If legal advice privilege is confined to communications passing between the lawyer and the “client” (in the sense of the instructing individual or those employees of a company authorised to seek and receive legal advice on its behalf), this presents no problem for individuals and many small businesses, since the information about the case will normally be obtained by the lawyer from the individual or board members of the small corporation. That was the position in most of the 19th century cases. In the modern world, however, we have to cater for legal advice sought by large national corporations and indeed multinational ones. In such cases, the information upon which legal advice is sought is unlikely to be in the hands of the main board or those it appoints to seek and receive legal advice. If a multi-national corporation cannot ask its lawyers to obtain the information it needs to advise that corporation from the corporation’s employees with relevant first-hand knowledge under the protection of legal advice privilege, that corporation will be in a less advantageous position than a smaller entity seeking such advice. In our view, at least, whatever the rule is, it should be equally applicable to all clients, whatever their size or reach. Moreover, it is not always an answer to say that the relevant subsidiary can seek the necessary legal advice and, therefore, ask its own lawyers to secure the necessary information with the protection of legal advice privilege. In a case such as the present, there may be issues between group companies that make it desirable for the parent company to be able to procure the information necessary to obtain its own legal advice.”
“If, therefore, it had been open to us to depart from Three Rivers (No 5), we would have been in favour of doing so. For the reasons we have given, however, we do not think that it is open to us, so it is a matter that will have to be considered again by the Supreme Court in this or an appropriate future case.”
“This is its submission to the effect (the following formulation below is my own synopsis) that it is not contrary to Three Rivers (No 5) that where an individual, with the authority of a corporation which is seeking legal advice, communicates to the corporation’s legal advisers at their request either instructions or factual information, in confidence and for the purpose of enabling that corporation to seek or receive legal advice, that communication (including any factual information) should be treated as if the individual were part or an emanation of the client and protected by legal advice privilege accordingly. Indeed, RBS contends that such treatment is necessary in order to fulfil the purpose of the protection afforded by legal advice privilege.”
“Thus, breaking down each component, it is RBS’s case that it is consistent with Three Rivers (No 5), and to provide full content in a corporate context to the protection of legal advice privilege it is necessary, that: (1) Any confidential ‘communication’ between a client and a lawyer for the purpose of giving or obtaining legal advice (and any evidence of such a ‘communication’) is protected by legal advice privilege; (2) Where the client is a corporation, statements made to the corporation’s lawyers by employees authorised (as a matter of fact) by the corporation to make them constitute lawyer-client ‘communications’ for the purposes of legal advice privilege, rather than merely information gathering preparatory to such ‘communications’; (3) That is so whether or not the employee concerned was authorised to seek or receive legal advice: it is the identity of the parties to the communication, not the nature of the communication which determines whether the material is ‘preparatory’ and whether in turn it is protected by legal advice privilege: as Ms Tolaney put it in her Speaking Note handed up to me on the second day of the hearing, ‘the moment the Court is satisfied that there was a communication directly to the solicitor from an authorised employee, the communication is by definition not preparatory material’ …, and on that footing, privileged.”
“91. I agree with the Claimants that this conclusion must follow logically from the two facets of the decision in Three Rivers (No 5), namely (1) that the client for the purposes of privilege consists only of those employees authorised to seek and receive legal advice from the lawyer and (2) that legal advice privilege does not extend to information provided by employees and ex-employees to or for the purpose of being placed before a lawyer. 92. Applied to this case, that reasoning is, in my judgment, fatal to RBS’s claim of legal advice privilege for the Interview Notes in question. 93. In summary, I consider and hold that the Interview Notes, albeit that they record direct communications with RBS’s lawyers, comprise information gathering from employees or former employees preparatory to and for the purpose of enabling RBS, through its directors or other persons authorised to do so on its behalf, to seek and receive legal advice. It is clear from the judgment in Three Rivers (No 5) that ‘information from an employee stands in the same position as information from an independent agent’ (see p1574H). The individuals interviewed were providers of information as employees and not clients: and the Interview Notes were not communications between client and legal adviser. I do not consider that any sufficient basis has been demonstrated for not applying Three Rivers (No 5). … .”
“45. The nub of the Court of Appeal’s conclusions in Three Rivers (No 5), therefore, was that, in a corporate context, information gathered from an employee is no different for these purposes from information obtained from third parties, even if the information is collected by or in order to be shown to a solicitor to enable fully informed advice to be given to that solicitor’s client, the corporate entity (represented in the Three Rivers (No 5) case by the BIU). 46. The Court of Appeal, in reaching those conclusions, thus refused to accept counsel for the Bank’s primary argument that, in order to give full and modern effect to legal advice privilege in the context of a claim to it by a corporation, a corporation’s employees cannot be regarded and should not be treated as third parties for the purposes of privilege: see page 1560E.”
“It is extraordinary that there should be any real confusion in 2024 surrounding the question, who can be a client for advice privilege purposes, at least where the client is a corporate entity?Unfortunately English law continues to be wrapped in uncertainty in this area because of the Court of Appeal’s 2003 decision in [Three Rivers (No 5)]. This is an uncertainty that may well continue throughout the life of this edition of this work. Where the client is an individual, no issue arises. But where the client is, for example, a corporate entity or other large organisation, it is only a small group of individuals - perhaps a board of directors, a specially constituted sub-committee thereof, a steering group, or some other identifiable group of delegated individuals employed by that entity and who are expressly charged or tasked with seeking legal advice on its behalf who can engage in protected communications with the entity’s lawyers (whether internal or external lawyers) under the advice head of privilege. This approach has the consequences that neither (i) preparatory communications made with or by other representatives of the client, even if intended for submission to the client’s lawyers or prepared at the request of the client or its lawyers for use in seeking legal advice, nor (ii) direct communications between the legal advisers and current or former employees of the corporate that seek or convey factual information needed by the legal advisers to enable them to advise the corporate, even where those employees are expressly authorised by the corporate so to communicate will be privileged. Accordingly, it is presently only the fact of actual communication between the small group of specially tasked employees or officers of the ultimate corporate client and the corporate’s lawyers, undertaken for the purposes of seeking and giving legal advice, that will attract advice privilege, and not what Tomlinson J. at first instance in Three Rivers (No 5) described as ‘the process of communication’ between that client generally and its lawyers.”
“Given the difficulties caused by the decision in Three Rivers 5 …, attempts were made in subsequent cases to distinguish the decision and to confine its ratio as narrowly as possible. For example, the Singapore Court of Appeal in Skandinaviska Enskilda Banken v Asia Pacific Breweries sought to limit the effect of Three Rivers 5 by interpreting the decision as one based on the particular fact that only the members of the BIU had been authorized to communicate with the Bank’s lawyers. The effect of this interpretation - which was advocated for strongly by previous editions of this work - would be to allow privilege to be claimed over communications between lawyers and any employee authorized to act for the company in the process of obtaining legal advice (and not merely those who were tasked with seeking or receiving such advice).However, this argument was rejected as a permissible interpretation of Three Rivers 5 in RBS Rights Issue Litigation, where Hildyard J held that notes of interviews with employees and former employees of the defendant bank taken by the defendant’s lawyers were not protected by legal advice privilege. In particular, Hildyard J held that to fall within the scope of legal advice privilege, the employee communicating with the lawyer had to be authorized to provide instructions to the lawyers and/or to receive the legal advice on behalf of the client; it was insufficient if the employee was only authorized by the client to provide information to the client’s lawyers. A similar argument was advanced again in ENRC … . This view of the ratio of Three Rivers 5 was again confirmed by the Court of Appeal in Jet2, where Hickinbottom LJ held that the Court of Appeal was bound by the decision in Three Rivers 5 that legal advice privilege covered only communications between the corporation’s lawyers and the ‘particular employee... tasked with seeking and receiving such advice on behalf of the client’. It therefore appears clear that, as a matter of authority, a narrower reading of Three Rivers 5 is no longer available as a means of escaping the unsatisfactory consequences of the decision.”
“It is relatively easy to apply the category of documents evidencing lawyer-client communications to documents created after a privileged communication has taken place, but it is suggested that the protection must extend to some documents which are anterior or preparatory to the actual lawyer-client communication. This would most obviously apply to drafts of actual communications, such as a draft letter to the client or the lawyer (as to which there can be no serious dispute that privilege would apply). The intention to communicate with the lawyer accounts for the existence of the draft letter. There is no principled reason why privilege could not be claimed in whole or in part for other anterior documents where their contents evidence the substance of a subsequent privileged communication. If a lawyer’s working papers are privileged, why should his/her client’s working papers not also be privileged, provided they are sufficiently connected with the actual lawyer-client communications? As Bray noted: ‘Where a document has been prepared ... by the client for the purpose of communicating it to his solicitor it must stand on the same footing as an actual letter, for instance rough notes or memoranda for this purpose ...’.”
“It ought to be possible to say whether a document created by a client or his/her lawyer is privileged at the time of its creation; the use to which a document happens subsequently to be put is irrelevant to its privileged status. Its privileged status will turn on the reasons for which the document comes into existence. Whether privilege can be claimed in relation to a document which is not itself an actual communication between lawyer and client is likely to depend, as with an actual communication, on the intentions of the author of the document or of the person under whose direction the document is produced: if the intention was that the contents of the memorandum would be communicated to the lawyer, then the memorandum ought to be privileged even if it was not subsequently sent. If this was not the intention at the time the document was created or the author was undecided as to what to do until after the document had been created or considered, it is doubtful that the logic of the Court of Appeal’s decision in Three Rivers 5 would extend protection to such a document.”
“To give a concrete example, a lawyer might ask for information on a particular topic from the client to enable the lawyer to give advice and this may be recorded by the client in a memorandum which the client does not intend to and does not in fact physically send to the lawyer. The memorandum would not therefore strictly speaking constitute a communication. Nor does it constitute an intended communication … . But the intention to communicate with the lawyer entirely accounts for the existence of the memorandum and the contents of the memorandum are utilized in the communication sent by the client to his/her lawyer. In such a case the actual letter would undoubtedly be privileged, but the prior memorandum might evidence the contents of the letter to a sufficient degree that it could also legitimately be the subject of a valid claim to privilege, whether in whole or in part, in the same way that a draft letter would be privileged. …”
“Although the privilege attaches to communications between a lawyer and his client, the law recognises that legal advice is not given for hypothetical purposes, but to be considered and (insofar as accepted) applied by the client. It is therefore well-established that it covers, not only a document from the lawyer containing advice and the client’s own written record of advice (whether given in writing or orally), but also any communication (again, whether written or oral) passing on, considering or applying that advice internally (Bank of Nova Scotia v Hellenic Mutual War Risks Association (Bermuda) Limited (The Good Luck)[1992] 2 Lloyd’s Rep 540 (‘The Good Luck’) at pages 540-1 per Saville J, and USP Strategies Plc v London General Holdings Limited[2004] EWHC 373 (Ch) (‘USP Strategies’) at [19(c)] per Mann J). Indeed, there are circumstances in which the privilege will attach to the dissemination of advice to third parties (USP Strategies and Gotha City v Sotheby’s[1998] 1 WLR 114 ). Equally, LAP attaches to communications from a lawyer to a third party containing information provided by the client to the lawyer which is covered by LAP and which the client has given the lawyer authority to disclose (Raiffeisen Bank International AG v Asia Coal Energy Ventures Limited and Ashurst LLP[2020] EWCA Civ 11 at [63]).”
“The second proposition to which I referred concerns the extent to which legal advice, privileged when given, can be disseminated internally and externally without the loss of privilege, where the law has taken a flexible and realistic approach, reflecting the realities of modern corporate and commercial arrangements. However, the law has taken a somewhat different approach to the collection of material, internally and externally, for the purpose of obtaining legal advice, based upon the principle set out in Wheeler v Le Marchant. The fourth proposition derived from the authorities is that material collected by a client (or by his lawyer on his behalf) from third parties or independent agents for the purposes of instructing lawyers to give advice is not covered by LAP; and, further, where the relevant client is a corporation, documents or other materials between an employee of that corporation and a co-employee or the corporation’s lawyers, even if required or designed to equip those lawyers to give legal advice to the corporation, do not attract LAP unless the employee was tasked with seeking and receiving such advice on behalf of the company (Three Rivers (No 5) at [8] and following, and the judgment of this court (Sir Brian Leveson PQBD, Sir Geoffrey Vos C and McCombe LJ) in [SFO v ENRC] ... especially at [79]-[81] and [123]-[130]).”
“56. I respectfully agree. In addition: (i) Three Rivers (No 5) does not appear to allow for any caveats to the proposition that material sent by a third party/agent/employee to a lawyer (and vice versa) is not covered by LAP. However, where lawyers are instructed, the individual within a corporation instructing them must be able to ensure that the instructions are in accordance with the wishes of the senior executives in the company, which may involve input from more junior employees who are knowledgeable about the relevant issues. Internal communications settling instructions must be covered by LAP. It is unclear to me how the proposition in Three Rivers (No 5) quite allows for that. (ii) For no obvious reason, the law in relation to LAP as set out in Three Rivers (No 5) in respect of collection of information for the instruction of lawyers appears to be out of line with the law in respect of the dissemination of advice from lawyers, once received (i.e. Proposition 2, as described in paragraph 45 above). 57. For those reasons, like the constitution of the court in [SFO v ENRC], on the basis of both principle and practical application, I respectfully doubt both the analysis and conclusion of this court in Three Rivers (No 5) on this issue; and, had it been in this court’s power, I too would be disinclined to follow it. 58. But, as I have indicated, we do not have that power. In Three Rivers (No 5), this court held that communications between an employee of a corporation and the corporation’s lawyers does not attract LAP unless that particular employee was tasked with seeking and receiving such advice on behalf of the client; and, as confirmed in Three Rivers (No 6) at [47] per Lord Scott and [SFO v ENRC], that is binding on this court. As Hildyard J succinctly put it in [In re RBS Rights Litigation][2016] EWHC 3161 (Ch) ;[2017] 1 WLR 1991 : ‘… [T]here can be no real doubt as to the present state of the law in this context…: Three Rivers (No 5) confines legal advice privilege to communications between lawyer and client, and the fact that an employee may be authorised to communicate with the corporation’s lawyer does not constitute that employee the client or a recognised emanation of the client.’”
“… In my view, the following is the appropriate approach to multi-addressee emails such as those of which Jet2 seek disclosure in this case. (i) As I have indicated, the dominant purpose test applies to LAP. As I have indicated …, although the general role of the relevant lawyer may be a useful starting point (and may, in many cases, in practice be determinative), the test focuses on documents and other communications and has to be applied to each such. (ii) In respect of a single, multi-addressee email sent simultaneously to various individuals for their advice/comments, including a lawyer for his input, the purpose(s) of the communication need to be identified. In this exercise, the wide scope of ‘legal advice’ (including the giving of advice in a commercial context through a lawyer’s eyes) and the concept of ‘continuum of communications’ must be taken fully into account. If the dominant purpose of the communication is, in substance, to settle the instructions to the lawyer then, subject to the principle set out in Three Rivers (No 5) (see paragraphs 47 and following above), that communication will be covered by LAP. That will be so even if that communication is sent to the lawyer himself or herself, by way of information; or if it is part of a rolling series of communications with the dominant purpose of instructing the lawyer. However, if the dominant purpose is to obtain the commercial views of the non-lawyer addressees, then it will not be privileged, even if a subsidiary purpose is simultaneously to obtain legal advice from the lawyer addressee(s). … (iv) There was some debate before us – as there is in the textbooks (e.g. in Hollander …) – as to whether multi-addressee communications should be considered as separate bilateral communications between the sender and each recipient, or whether they should be considered as a whole. My preferred view is that they should be considered as separate communications between the sender and each recipient. LAP essentially attaches to communications. Where the purpose of the sender is simultaneously to obtain from various individuals both legal advice and non-legal advice/input, it is difficult to see why the form of the request (in a single, multi-addressee email on the one hand, or in separate emails on the other) in itself should be relevant as to whether the communications to the non-lawyers should be privileged. That is not to say, of course, that the form may not in some cases reveal the true purpose of the communication, e.g. it may appear from the form of the email that the dominant purpose of the email is to settle the instructions to the lawyer who has merely been copied in by way of information, or to the contrary that the dominant purpose of sending the email to the non-lawyers is to obtain their substantive (non-lawyer) input in any event. (v) In my view, there is some benefit in taking the approach advocated by Hollander …, namely to consider whether, if the email were sent to the lawyer alone, it would have been privileged. If no, then the question of whether any of the other emails are privileged hardly arises. If yes, then the question arises as to whether any of the emails to the non-lawyers are privileged, because (e.g.) its dominant purpose is to obtain instructions or disseminate legal advice. (vi) However, whether considered as a single communication or separate communications to each recipient, and whilst there may perhaps be ‘hard cases’, I doubt whether in many cases there will be any difference in consequence, if the correct approach to LAP is maintained. Where there is a multi-addressee email seeking both legal advice and non-legal (e.g. commercial) advice or input, if regarded as separate communications, those to and from the lawyer will be privileged: otherwise, they will not be privileged, unless the real (dominant) purpose of a specific email to/from non-lawyers is that of instructing the lawyer. If it is not for that purpose, in most cases, the email as a whole will clearly not have the dominant purpose of obtaining legal advice. … .”