Burkle Holdings Ltd v Laing

Legal advice privilege depends on a relevant solicitor-client relationship concerning the client’s rights, obligations or remedies. Once established, it is absolute and cannot be overridden by a competing public interest. Where a solicitor acts for more than one person, the court must identify the retainer and decide whether instructions were joint or several. A solicitor’s preparation of documents, circulation of drafts, or holding of security does not by itself establish that legal advice was given to every person involved. Joint instructions prevent one party asserting privilege against the other only where the joint retainer and its scope are established. Separate retainers preserve the confidentiality of advice given to each client.

Burkle Holdings Limited sought disclosure of documents held by Taylor Walton solicitors concerning loan and proposed profit-share arrangements involving Burkle, David Laing and Ian Watson. Laing argued that the solicitor, Mr Kelly, had acted for him and Burkle jointly, so privilege could not be asserted against him. Burkle maintained that Taylor Walton acted for Burkle and Watson alone, or that any retainer with Laing was separate and limited.

The court heard evidence from Mr Kelly, Mr Laing and Mr Watson. The central issues were whether a solicitor-client retainer existed between Mr Kelly and Mr Laing, its scope, whether it was joint or several, and whether any common interest required disclosure.

1. Legal principles. Legal advice privilege requires a relevant legal context. The advice must concern the client’s rights, obligations or remedies under private or public law. The retainer may be express, contractual or inferred objectively from all the circumstances.
2. Privilege arises from the confidential solicitor-client relationship and, once established, is absolute. It gives the person entitled to it the right to refuse disclosure. The solicitor’s contractual duty of loyalty and confidentiality is shaped by the retainer.
3. A solicitor may act for both parties to a transaction where their interests may conflict only with the informed consent of both. That requires disclosure of the material facts, including the risk that the solicitor may be unable to disclose all relevant knowledge or advise one client against the interests of the other. In some circumstances it will be impossible to act fairly and adequately for both.
4. Instructions may be joint or several. A joint retainer prevents one party asserting privilege against the other in proceedings between them, but the scope of the joint instructions must first be established. A several retainer does not entitle one client to advice given confidentially to the other. A common interest may also prevent privilege attaching to communications in proceedings involving that common interest, but no such common interest existed here.
5. Applying those principles, Mr Kelly initially acted for Burkle and Watson. Laing was kept informed and was asked to comment on drafts, but he was not given legal advice about his rights, obligations or remedies under the 1999 agreement. Holding security to his order pending completion was a limited mechanical function and did not establish a wider retainer.
6. The same analysis applied to the 2002 agreement. Any advice given to Laing in 2003 was separate from the independent legal advice given to Watson and Burkle. There was no express or implied agreement by Watson to a joint retainer and no common interest requiring disclosure.
7. The disclosure application therefore failed in relation to documents covered by Burkle’s privilege. The court reserved further argument, if necessary, concerning the proposed profit-share agreement and related shareholding documents.

First-instance decision. The judgment does not state any prior appellate history.