Property Alliance Group v RBS – The importance and application of legal advice privilege

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An important High Court decision has clarified the circumstances in which factual communications and documents between lawyers and their clients are protected by legal advice privilege.

Privilege is a hugely valuable legal right which entitles a client to withhold documents (including electronic communications) from a court or third party without any adverse inferences being drawn. There are important public policy justifications underpinning privilege, such as the need for clients to be able to candidly disclose matters to their lawyers; to enable lawyers to obtain, investigate, record and freely communicate to their clients; and, in the context of regulatory investigations, so that regulators can deal with experienced lawyers, which in turn will advance public interest. For legal advice privilege to apply:

  • The document or communication in question must be confidential;
  • The document must pass between a qualified lawyer and his or her client;
  • The document must have been created for the purpose of giving or receiving legal advice in the relevant legal context; and
  • Privilege must not have been lost or waived, even inadvertently.

When the LIBOR manipulation scandal broke and RBS became the subject of several regulatory investigations, it established a steering group to oversee the various investigations and any related litigation, and to liaise with external legal advisors. The Property Alliance Group (PAG) brought a claim against RBS and sought disclosure of two types of factual documents prepared by RBS’ lawyers for the steering group: confidential tables which informed and updated the steering group on the progress of, and issues arising from, the investigations; and confidential notes (effectively minutes) of steering group meetings organised and attended by the lawyers. PAG argued that the lawyers were performing an administrative function and that the documents in question were largely factual and should be disclosed, but with any legal advice redacted. RBS countered that the documents were privileged – and the High Court agreed.

The court held that both types of documents were part of the “continuum of communication and meetings between the solicitor and client… Where information is passed… aimed at keeping both informed so that advice may be sought and given as required”. All of the requisite factors were present and the documents were therefore protected by legal advice privilege. The judge emphasised that factual documents will not attract privilege simply because they were prepared by a lawyer who was present at a meeting – the key consideration will be whether the documents were created in connection with the provision of legal advice.

For top tips on the protection of privilege generally, explained by Walker Morris’ partner Gwendoline Davies, please see our more detailed briefing.