Three Rivers Council & Ors v Bank of England

For legal advice privilege, relevant communications between a corporation and its former officers may remain internal communications rather than communications with third parties. The question is whether the information represents knowledge attributable to the corporation at the material time and whether the documents satisfy the dominant purpose test. Former officers who acquired confidential information while acting for the corporation are not analogous to external experts or advisers who supplied information never possessed by the client. Excluding such communications would unduly restrict a corporation’s ability to prepare confidentially for legal advice.

This was an addendum to the court’s earlier judgment on legal professional privilege. The issue concerned material generated when the Bank of England Investigation Unit consulted former officers and employees about their knowledge of BCCI supervision during the period examined by the Bingham Inquiry. The claimants argued that the former officers were third parties because they no longer worked for the Bank when consulted. The Bank contended that communications with them were protected by legal advice privilege. The court also considered the analogy with Wheeler v Le Marchant and Re Highgrade Traders Ltd.

1. The communications with the Bank’s former officers were protected by legal advice privilege, provided that the material satisfied the dominant purpose test.

2. A corporation may act only through individuals. In preparing to obtain legal advice, it must be able to establish the extent of the knowledge that it possessed through former officers at the material time. A complete and sound factual account for the legal advisers could therefore require information obtained from those officers.

3. Former officers who had acquired relevant and confidential knowledge while supervising BCCI for the Bank were not, for this purpose, third parties. Their relevant knowledge was attributable to the Bank at the periods relevant to the inquiry.

4. The case was distinguishable from Wheeler v Le Marchant and Re Highgrade Traders Ltd, which concerned external surveyors, loss adjusters, fire experts and accountants supplying information that had never represented knowledge attributable to the client.

5. The court expressed no view on the alternative argument based on common interest privilege. That issue could be pursued elsewhere if necessary.

This was a first-instance addendum to the court’s earlier judgment on legal professional privilege. No separate appellate history is stated in the judgment.