Re-examining legal privilege

Issues around privilege always seem to be in the news. Not surprising for such a fundamental right, coupled with the fact that in England we have huge numbers of court decisions on privilege every year.

The big issue for the coming months will be the government’s desire to intrude on privilege through the use of surveillance techniques. The new provisions in the latest draft of the Investigatory Powers Bill (clause 25, for example) are surprising and troubling. That is why The Law Society and the Bar Council are seeking to influence the Home Office and parliamentarians to make sure that the Bill is amended to provide adequate protection to privileged materials.

In this piece, however, I want to focus on another troublesome aspect of privilege, namely the Court of Appeal’s well-known decision of 13 years standing in Three Rivers (No 5). I suspect most civil law practitioners are familiar enough with it and so will know that in a corporate context this is very difficult to apply because of the narrow definition of ‘client’ it imposes for the purposes of legal advice privilege. In short, the client in this context is not any (human) member of the client entity who communicates with the lawyer for the purposes of enabling the entity to seek legal advice, but only that small group who are given the responsibility for obtaining that advice.

I have written and lectured extensively about my dissatisfaction with this decision and have long hoped that a case might wind its way to the Supreme Court to see if Three Rivers (No 5) might be overturned.

That hope has been fuelled by decisions in other major common law jurisdictions rejecting the Three Rivers approach. Last year, Hong Kong became the latest jurisdiction to do this with its Court of Appeal decision in Citic Pacific Limited v Secretary for Justice and Commissioner of Police. Good news of sorts – albeit a problem for English lawyers operating on a cross-border dispute with Hong Kong, because what is privileged there is not privileged before our courts.

So what is the answer to this conundrum? I am afraid I don’t have one to hand, save to say that I was heartened by a speech delivered by Lord Neuberger earlier this month: ‘The scope and role of the legal professional privilege and its proper place in the context of corporate internal investigations’. It would be wrong of me to seek to interpret Lord Neuberger’s remarks as suggesting that the Supreme Court is ready to overturn Three Rivers (No 5), and, of course, he would not put himself in that position. But it is good to know that our senior judges are alive to the challenges around this decision and seem to appreciate that it will benefit from a re-examination.

Having offered a good summary of the effect of the decision, Lord Neuberger noted that: ‘Although the House of Lords refused leave to appeal in Three Rivers (No 5), they said in the subsequent Three Rivers (No 6) decision that each of the competing views on the point at issue was “eminently arguable”, but did not say, or even hint, which they thought was right.’

But here is the point of interest – the glimmer of light. Lord Neuberger went on to say: ‘So for the moment at least, the sensible course is probably to proceed on the basis that the law as to the “client” for LAP purposes is as laid down in Three Rivers (No 5), although it may in due course be distinguished on its facts, overruled – or affirmed. To adapt a well-known phrase, in my position I can say that, but I can’t possibly comment’. [My emphasis.]

I wasn’t present so I have no idea if these words were accompanied by a knowing nod. Nonetheless, is that a hint that this eminent judge would welcome an opportunity for the Supreme Court to revisit this issue? It would be unfair to over-analyse Lord Neuberger’s remarks – they were not said as part of a judgment – but one does wonder why he said what he did. So might we hope that there is a case out there that will provide the opportunity for that revision – and even better the long-overdue reversal of Three Rivers (No 5)?

Colin Passmore is senior partner at Simmons & Simmons