Reed Smith Briefings

The important decision of the Court of Appeal in Director of the Serious Fraud Office v Eurasian Natural Resources Corporation [2018] EWCA Civ.2006 (report here) has moved the law of legal professional privilege (LPP) in a more realistic and commercial direction. It is very much to be welcomed.

Authors: Eoin O'Shea Dominic Bullen

The law of privilege

Of course, the law of privilege will never be entirely straightforward. There is a basic tension between the wish of authorities and opponents in litigation to have access to useful information and the right of a client to confidentiality when dealing with their lawyer. There will always be unusual cases around the margins but setting out the principles is a vital task of the higher courts.

LPP takes two forms. The first is ‘legal advice privilege’, which applies to communications between clients and their lawyers in connection with the giving of legal advice. However, the present law is that legal advice privilege does not apply to communications between a client (or the client’s lawyer) and third parties. 

The second form of LPP is ‘litigation privilege’. It does apply to communications with third parties – but only if litigation is reasonably in prospect. To be protected, the dominant purpose of the communications must be dealing with this litigation.