Solicitors were left in a state of confusion last week after the House of Lords shunned an opportunity to clarify who constitutes a 'client' in the long-awaited Three Rivers case on privilege and also cast doubt on whether litigation privilege should attach to expert witnesses under the Civil Procedure Rules 1998.


While a result in the case was given in August (see [2004] Gazette, 5 August, 1), solicitors had hoped that the detailed reasoning for the judgment, handed down last week, would override an unpopular aspect of the Court of Appeal decision that limits privilege to certain individuals within an organisation.



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 the bank BCCI in the 1990s.



Val Davies, litigation partner at City firm Norton Rose, said: 'I am very disappointed that the House of Lords has not dealt with the issue of who is the client. The Court of Appeal redefined this very restrictively, which causes huge practical difficulty for solicitors, as it means that only those within an organisation who actually communicate instructions to the lawyers or receive advice count as the client for the purposes of privilege.'



She added: 'One of the reasons the House of Lords gave for not dealing with this was that it was a very difficult point. I would have thought that is what the House of Lords is there to deal with.'



Colin Passmore, partner at City firm Simmons & Simmons, said: 'The decision has provided clear, constructive advice on what legal advice privilege is, and is a ringing endorsement of advice privilege as a fundamental rule of law. But it is disappointing that no views were offered on who is the client, even though that is the most problematic part of the Court of Appeal judgment.'



He continued: 'What concerns me most is a suggestion by Lord Scott that litigation privilege may not be available for expert reports and witness statements because under civil procedure rules proceedings are not necessarily adversarial, and experts are of the court, not of the parties.



'That is very controversial, and would be a fundamental change. To say that civil procedure is not adversarial is not realistic. The remarks did not form part of the main judgment, but lawyers should keep an eye on the fact that there may be a successful challenge based on this point.'