Practice and Procedure


PUBLISHED November 6, 2003

Communications passing between a solicitor and client regarding information to be supplied to the Bingham Enquiry Unit was not to be characterised as legal advice of the sort that attracted legal advice privilege.Application by the claimants for disclosure of communications between the Bingham Inquiry Unit ('BIU') and the defendant's solicitors ('Freshfields') insofar as those communications were seeking assistance as to the manner in which the defendant Bank ('the Bank') should properly present evidence and material to Bingham LJ. The claimants were former depositors with the Bank of Credit and Commercial International ('BCCI') who alleged, inter alia, that BCCI's collapse had been attributable to a massive fraud on the part of its senior employees which had not been detected because of the misfeasance of the Bank in the exercise of its regulatory functions. In 1992 Bingham LJ submitted his report into the collapse of BCCI to the Chancellor of the Exchequer and to the Bank. The claimants sought disclosure from either the Treasury or the Bank of the documents generated by or on behalf of the inquiry. On 7 August 2002 the Court of Appeal in Three Rivers District Council & Ors v Governor & Company of the Bank of England (2003) EWCA Civ 474 dealt with the ambit and extent of the legal advice privilege on which the Bank could rely and declared that the only documents that the Bank were entitled to withhold were communications passing between the Bank and its legal advisors that were for the dominant purpose of seeking or obtaining legal advice. The expression "legal advice" was not defined by the Court. The claimants had limited their arguments before the Court of Appeal by stating that they were not seeking disclosure of documents passing between BIU and Freshfields. The claimants now contended that it could not be presumed that the dominant purpose of the entirety of communications between the BIU and Freshfields had been concerned with the seeking of legal advice properly so called but were rather concerned with the seeking of assistance on presentational matters which might have been given by suitably experienced accountants or management accountants. That material would not be covered by legal advice privilege. The claimants submitted that the Court of Appeal's conclusion on dominant purpose was applicable to the communications passing between BIU and Freshfields and that the issue had already been decided. The Bank submitted that the Court of Appeal was not to be taken to have decided, whether deliberately or inadvertently, that documents passing between the BIU and Freshfields were not protected from disclosure.HELD: (1) The true rational of legal advice privilege was that it was a privilege in aid of litigation. (2) It covered the seeking or obtaining of legal advice concerning rights and obligations, because it was rights and obligations that formed the subject matter of the litigation. (3) Legal advice privilege ought to be confined to its proper limits and it was not open to the courts to extend the ambit of the privilege even if they thought they should. (4) It was therefore unlikely that the Court of Appeal could have intended to decide that all communications passing directly between BIU and Freshfields attracted legal advice privilege because the subject matter of such communications and documents had not been shown to have been about the rights or obligations of the Bank. (5) There was no support in the Court of Appeal's judgment for the proposition that Freshfields presentational assistance ought to be characterised as legal advice of the sort that attracted legal advice privilege. (6) It was implicit in the Court of Appeal's judgement that it did not regard Freshfields' assistance on presentational matters as attracting legal advice privilege. (7) The Bank were called to re-examine its disclosure in the light of the conclusions as to the effect of the judgment of the Court of Appeal.Application allowed.

[2003] EWHC 2565 (Comm)