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Legal Advice Privilege: "Once privileged, always privileged"

03 February 2020
A recent Court of Appeal case has confirmed that once a document is privileged, it remains privileged forever, unless that privilege is waived. 

The Court of Appeal, in Addlesee v Dentons Europe LLP [2019] EWCA Civ 1600 has issued a ruling on the law on legal advice privilege, overturning the decision of the Upper Tribunal (Tax and Chancery) in Garvin Trustees Limited v The Pensions Regulator [2015] Pens L.R.1. 

The case of Addlesee addressed the question of what happens to legal advice privilege attaching to communications between a company and its lawyers once that company has been dissolved and the Crown has disclaimed all interest in its former property. 

The Claimants were a group of investors who invested in a scheme, marketed by a Cypriot company, Anabus Holdings Ltd, which was alleged to be fraudulent. The company was dissolved in 2016. The Claimant issued proceedings against the Defendant solicitors, Dentons, in connection with alleged misrepresentations which they said induced them to invest in the scheme. To support their claim, the Claimants requested disclosure of documents held by the Defendant, which belonged to the company, using the decision from Garvin to argue that, on the basis that the company had been dissolved, privilege ceased to exist.  

The question for the court was whether the documents remained subject to privilege despite the company's dissolution. The judge at first instance found that they did, distinguishing the decision in Garvin in which it was no longer possible to restore the dissolved company to the register, finding that in Addlesee it was possible to restore the company and therefore possible for someone to assert privilege over the documents. 

The Claimants appealed but their argument was also rejected by the Court of Appeal. The Court of Appeal held that privilege was not lost simply because there was no person entitled to assert it and stated that the focus should not be on whether the dissolved company could be restored to the company register, but rather whether there is anyone who can waive privilege and if so, whether they have done so. 

The Court of Appeal confirmed that privilege is absolute and remains intact unless and until it is waived by a person entitled to do so or is overridden by statute. This decision highlights the strength of the principle 'once privileged, always privileged'.

DWF Crisis Response 

The law surrounding legal advice privilege is complex and the implications of disclosing privileged documents during the course of an investigation or litigation have serious consequences. If you face a potential investigation or litigation, involving legal advisors at the earliest opportunity will maximise the potential protection afforded by privilege and guide you from day one. 

DWF Crisis Response has all the expertise and experience to help you prepare for any business crisis, including the ability to provide crucial advice on the management of documentation to maximise the benefit of privilege.  

You can find out more about DWF Crisis Response here.

 

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