The future of legal advice privilege hangs in the balance in a House of Lords hearing this week as the Attorney-General, the Law Society and the Bar Council have all thrown their weight behind the doctrine by providing powerful written third- party submissions to the court.


In the case of Three Rivers, the professional bodies will attempt to persuade Britain's highest court to reverse a Court of Appeal decision in March that significantly curtailed the scope of legal advice privilege (see [2004] Gazette, 4 March, 1).



In the earlier Court of Appeal judgment, the Master of the Rolls, Lord Phillips of Worth Matravers, questioned the justification for legal advice privilege and limited it to advice 'related to legal rights and obligations' - as opposed to advice with a presentational or commercial element.


The case concerned communications between City firm Freshfields Bruckhaus Deringer and a special group of employees within the Bank of England dealing with the Bingham inquiry into the collapse of bank BCCI in the 1990s.


Colin Passmore, a partner at City firm Simmons & Simmons who contributed to the Law Society's submission, said: 'The Court of Appeal decision has caused a host of practical problems - it appears to have narrowed the scope of advice privilege and made its application difficult.'


The Society instructed City firm Linklaters and Sir Sydney Kentridge QC and Tom Adam of Brick Court Chambers in preparing its submission. Chief executive Janet Paraskeva said: 'The Society has chosen to intervene on behalf of both solicitors and their clients. Clients need the assurance that the information they give their solicitors is privileged and may not be improperly exploited. The right to consult a lawyer in complete confidence is a fundamental human right.'


A spokeswoman for the Attorney- General's office said the government had decided to intervene in support of reversing the appeal court decision because of concern over the implications for the lawyer/client relationship and the conduct of inquiries.


A Bar Council spokesman said that a fundamental principle of the rule of law was at risk.


The House of Lords hearing is scheduled for four days, with a ruling expected in September.



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