Welcome Clarification of English Law Regarding Legal Advice Privilege

November 16, 2015

The High Court has delivered an important judgment on the application of legal advice privilege to factual reports delivered by lawyers to their clients in the context of a regulatory investigation.

In the case of Property Alliance Group Ltd v The Royal Bank of Scotland plc, the High Court has held that when lawyers are coordinating responses and other communications to regulators during multi-jurisdictional investigations, they must be able to give clients “candid factual briefings” as well as legal advice, with the knowledge that any such communications and records of their discussions and the decisions taken will not be disclosed without the client’s consent.

Whilst this judgment remains a High Court decision and is therefore not binding, the ruling is a welcome clarification of the law. The judgment confirms that legal advice privilege can be claimed over documents produced by lawyers when they are engaged by an organisation to fulfil a fact-finding role during investigations. This has been an area of much debate since Three Rivers, and has been re-energised by recent public statements from the Serious Fraud Office about its intention to challenge claims of privilege made by companies and their lawyers, which the agency says are “obstructing investigations by hiding behind” privilege.

The High Court has also held that it is in the public interest for regulators to deal with experienced lawyers who can accurately advise their clients on how to respond to and coordinate complex multi-jurisdictional investigations.

This decision could be supportive of claims to legal advice privilege over factual reports created by lawyers during internal investigations where there is no external regulatory interest. The case does not alter the law that fact-finding reports produced by non-lawyers will not be privileged4 unless litigation privilege applies.

Read "Welcome Clarification of English Law Regarding Legal Advice Privilege".