Three Rivers No. 5: Difference between revisions

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-{{cite|Three Rivers District Council|Bank of England (No. 5)|2003|EWHC|2565}} is a controversial decision of the UK Court of Appeal about {{t|legal privilege}}. It has been criticised as creating a risk of restricting the "client" to some limited group of employees, so that communications or documents prepared by anyone else in the organisation would not be privileged, unless prepared for the purposes of contemplated litigation. That is because, unlike [[litigation privilege]], [[legal advice privilege]] does not apply to communications with third parties; it only covers lawyer-client communications.
+{{cn}}A marked man, since the Court of Appeals happy decision in {{casenote|SFO|ENRC}}, {{cite|Three Rivers District Council|Bank of England (No. 5)|2003|EWHC|2565}} is a controversial decision of the UK Court of Appeal about legal {{t|privilege}}.
-This concern has been validated in subsequent cases such as
+It is still the law, but expect it to be overruled soon.
-*{{Casenote|Serious Fraud Office|Eurasian Natural Resources Corporation}}
-*{{casenote1|RBS Rights Issue Litigation}}
+It has been criticised as creating a risk of restricting the “client” to some limited group of employees, so that communications or documents prepared by anyone else in the organisation would not be privileged, unless prepared for the purposes of contemplated litigation. That is because, unlike [[litigation privilege]], [[legal advice privilege]] does not apply to communications with third parties; it only covers lawyer-client communications.
+Although [[stare decisis|followed]] by the High Court in {{casenote1|RBS Rights Issue Litigation}} and (at first instance) in {{Casenote|Serious Fraud Office|Eurasian Natural Resources Corporation}}, {{casenote1|Three Rivers No. 5}} is basically a dead man walking since the Court of Appeal overturned the High Court decision's decision in {{casenote|SFO|ENRC}} and more or less invited ENRC to appeal to the Supreme Court so they could overrule  {{casenote1|Three Rivers No. 1}} for good measure.
+The [[inhouse cousel]] of the English [[common law]] world will not be sad to see it go.
+{{Seealso}}
 [http://www.bailii.org/ew/cases/EWCA/Civ/2003/474.html Judgment]
-The Bank of England claimed [[legal professional privilege]] for documents created between BCCI’s collapse and the Bank’s final submissions to the Bingham Inquiry.
+===Facts===
+The Bank of England claimed [[legal professional privilege]] for documents created between BCCI’s collapse and the Bank’s final submissions to the Bingham Inquiry, claiming simple “[[legal advice privilege]]” — privilege relating to legal advice ''not'' provided in contemplation of litigation.
-The Bank does not claim they were prepared in contemplation of litigation and so are thereby protected by “[[litigation privilege]]”; the Bank claims they protected by simple “[[legal advice privilege]]” — privilege relating to legal advice ''not'' provided contemplation of litigation.
+The issue boiled down to whether communications ''between employees'' in order to legal advice from a solicitor (but not specifically in contemplation of litigation) would be covered by the general [[legal advice privilege]]. Per general case law, the starting proposition was no: information given by one employee to another stands in the same condition as ’matters known to the client and does not, of itself, attract general solicitor/client privilege.
-The issue boiled down to whether communicatons ''between employees'' for the purpose of seeking legal advice from a solicitor (but not specifically in contemplation of litigation) would be covered by the general privilege. Per general case law, some of which summarized below, the starting proposition was no —information given by one employee to another stands in the same condition as matters known to the client and does not, of itself, attract general solicitor client privilege—but the proposition argued for the claimants was that a corporate defendant was different as it only could act through its employees.
+The proposition argued for the claimants was that a corporate defendant was different as it only could act through its employees. A good argument, but one that did not wash with the Court of Appeal then (though, per the judgment in {{Casenote|SFO|ENRC}} apparently does now).
 The lower court had held: “... an internal confidential document, not being a communication with a third party, which was produced or brought into existence with the dominant purpose that it or its contents be used to obtain legal advice is privileged from production...”
-The court went through the whole history of legal professional privilege. Highlights:
+The Court of Appeal went through the whole history of legal professional privilege. Highlights:
 *Para. 14: per ''Anderson v Bank of British Columbia'' (1876) 2 Ch.D. 644 per Melish J:
 **To be privileged a communication must come within one of two classes of privilege: