Privilege
***PRIVILEGED AND CONFIDENTIAL ATTORNEY WORK PRODUCT***
On the subject of legal advice privilege — or for that matter litigation privilege attaching to communications to or from your internal legal team:
There is none, now that Serious Fraud Office v Eurasian Natural Resources Corporation is a thing. Andrews J’s High Court judgment in Serious Fraud Office v Eurasian Natural Resources Corporation has been overruled... more to follow.
In the High Court, Andrews J held:
- General Legal advice privilege covers only communications actually between you and your solicitor (“you” being that part of your corporate organisation given over to doing things like speaking to lawyers — i.e., the legal eagles), and not communications between your other, non-legal employees when preparing to communicate with said solicitor (See Three Rivers No. 5); and
- Litigation privilege is a more powerful, deeper magic, but communications must be sent with the “sole or dominant purpose of preparing for contemplated litigation”, and “litigation” doesn’t include regulatory investigations, commissions of inquiry or the proceedings of a regulator.
In the Court of Appeal they took a different view.