Material prepared by Bank of England employees for the Bingham inquiry into the collapse of BCCI was not covered by legal advice privilege. The dominant purpose of such material was to put relevant factual material before the inquiry, not to obtain legal advice, so its disclosure in proceedings against the bank would be ordered.Appeal by the first claimant ('T') from the decision of Tomlinson J to accord legal professional privilege to certain documents in proceedings brought by T, which had lost money in the insolvent collapse of the second claimant ('BCCI') in 1991, against the defendant ('the bank') for misfeasance in public office. After the collapse of BCCI, there was an inquiry conducted by Bingham LJ ('the inquiry'). The bank appointed three bank officials to deal with all communications between the bank and the inquiry. They were known as the Bingham Inquiry Unit ('BIU'). The bank accepted that the documents of which disclosure was sought by T were not protected by litigation privilege, because the inquiry did not constitute adversarial proceedings (per Re L (1997) 1 AC 16); rather it claimed they were protected by legal advice privilege. T did not seek disclosure of documents that passed between the BIU and the bank's solicitors, nor the solicitors' internal memoranda or drafts, accepting that they were covered by legal advice privilege. However, T submitted that documents prepared by the bank's employees or ex-employees, whether prepared for submission to or at the direction of the solicitors or not, should be disclosed as they were no more than raw material on which the BIU would seek advice. The bank contended that: (i) any document prepared with the dominant purpose of obtaining advice from a solicitor came within the ambit of privilege, whether or not it was ever communicated to the solicitor; and (ii) there was no authority to support the proposition that it was only communications between solicitor and client that attracted privilege.HELD: (1) There was no distinction between material generated at the early stage of preparing for the inquiry and material generated in response to subsequent requests from Bingham LJ. All such material was prepared for the dominant purpose of putting relevant factual material before the inquiry, not for the dominant purpose of taking legal advice. (2) In any event, privilege did not extend to documents or internal memoranda of the bank's employees.Appeal allowed.

[2003] EWCA Civ 474