Recent cases have emphasised that legal professional privilege is a fundamental rule: the right of a client to consult lawyers without concern that such communications will subsequently be revealed or used in court without the client's consent.

It follows that there are very limited exceptions disapplying privilege where it would otherwise subsist, and such exceptions will be narrow

In Sports Direct International PLC v Financial Reporting Council [2020] EWCA Civ 177 the Court of Appeal considered whether, where a regulator made a request for documents under its statutory powers, which covered documents otherwise covered by legal professional privilege (LPP) there was a general exception on the basis that the regulator was not entitled to make use of the documents other than in the investigation. The FRC's requests were in connection with an investigation into Sports Direct's auditors, Grant Thornton, not Sports Direct itself.

Comments in previous cases had suggested that in principle there was a "no infringement exception" which might apply where privileged material is passed to a regulator. This proposition was robustly rejected by the Court of Appeal. Its view was that the beginning and the end of the assessment of whether privilege should be abrogated was to look at the specific power on which the FRC relied.  

Therefore, unless parliament has expressly chosen with unambiguous words to override LPP in a particular situation that will be the end of the matter.  In the case of the FRC, there was an express provision in the relevant instrument which limited the FRC's powers and confirmed LPP protection. That, the court considered was a clear statutory choice.

In line with the recent Jet2 case, the Court of Appeal also confirmed that any documents attached to a privileged email will not, without more, attract privilege. The Court noted that if a pre-existing document was sent by email to a legal adviser under cover of a privileged communication that did not transform it into a privileged document and rejected an argument on the construction of the notice sent by the FRC.

A case in which an exception to LPP protection was upheld is Addlesee v Dentons Europe LLP [2020] EWHC 238 (Ch). LPP will not attach to communications for the purposes of furthering crime, on the basis that such protection would be an abuse of the solicitor-client relationship and not supported by the underlying public policy justifications for LPP.

The threshold for the fraud exception to apply is high, although the solicitor and even the client do not need to be aware of the wrongful purpose: the question will be whether there is sufficient prima facie evidence before the Court of the wrongdoing. It had been argued in Addlesee by the solicitors that a very strong prima facie case of fraud should be required, but this was rejected: the Court required only strong prima facie evidence of fraud, noting that the solicitor Defendants did not deny that the scheme was fraudulent, (although they did not admit it), the relevant fraud was that of a third party and that third party had been dissolved. The Court noted that in this particular case the evidentiary requirements for fraud had been discharged, characterising the case as "very strong and compelling" and that it was unlikely that further information would arise before trial of the main action that would change the position.

However, as noted above, the fraud exception will always be considered on a case by case basis; there are unlikely to be a substantial number of instances that meet the high requirements. In practice the Courts will be reluctant to disapply privilege, unless there is compelling evidence of iniquity. Claimants will need to convince the Courts of iniquity even where the Defendant takes a neutral position.

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Rachel Cook

Rachel Cook

Managing Associate, Dispute Resolution
United Kingdom

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