As every lawyer knows, legal professional privilege is a tricky area and can be hotly contested.
It has been the subject of ongoing controversy in proceedings relating to Property Alliance Group Limited's entry into a swap with RBS, referenced to LIBOR.
As I previously commented in July, the High Court had not initially been satisfied that privilege had been properly claimed by RBS in relation to documents prepared by Clifford Chance for RBS's internal committee – the Executive Steering Group (ESG) – charged with responsibility for managing RBS' myriad regulatory investigations and litigation. The court ordered that it should inspect the documents and determine whether the documents were privileged.
The court has now ruled that those documents are privileged, on the basis that legal advice privilege can extend to factual information about regulatory investigations and litigation when exchanged between lawyer and client in the context of seeking and giving legal advice. Snowden J was entirely satisfied that:
- Clifford Chance had been engaged by RBS in a "relevant legal context";
- the documents formed part of "a continuum of communication and meetings" between lawyer and client, the object of which was the giving of legal advice as and when appropriate. Even though some of those documents included factual recitals of events that would not, in themselves, have attracted privilege, Snowden J was not willing to order disclosure even on a redacted form, regarding the factual information as an indivisible part of the advice; and
- there is a public interest in regulatory investigations being conducted efficiently and in accordance with the law. That public interest will be advanced if the regulators can deal with experienced lawyers who can accurately advise their clients how to respond and co-operate. Such lawyers must be able to give their client candid factual briefings as well as legal advice, secure in the knowledge that any such communications and any record of their discussions and the decisions taken will not subsequently be disclosed without the client's consent.
This decision will bring some comfort to businesses defending investigations and proceedings on many fronts (and corresponding frustration for claimants), but any claim to privilege will always be fact-dependent. Businesses will therefore still need to be alive to the issue of privilege in setting up and maintaining their lines of communication in the context of any regulatory proceeding or litigation. The question will always be whether the lawyer was "being asked qua lawyer to provide legal advice".