A key High Court judgement on the rules on legal advice privilege (Re the RBS Rights Issue Litigation) will not now be considered by the Supreme Court as RBS has decided not to appeal.
Broadly, the concept of legal advice privilege means that communications passing between a solicitor and client for the purposes of obtaining legal advice need not be disclosed in legal proceedings. The question of exactly which documents are privileged can be unclear. The High Court in the RBS case interpreted the rules narrowly, holding that only communications between lawyers and those individuals at the client authorised to seek and obtain legal advice on behalf of the client attract legal privilege, with privilege not extending to those individuals at the client who are only authorised to provide information to the lawyers.
Where the client is a large organisation, the current case law on legal privilege means that the legal privilege will only attach to a much more limited class of documents than might previously have been thought. Trustees of pension schemes are often asked to disclose legal advice to third parties such as scheme actuaries or administrators. This can give rise to a risk of privilege being lost. Putting in place a non-disclosure agreement with the third party can reduce the risk of this happening.