Property Alliance Group Ltd v The Royal Bank of Scotland Plc

Legal advice privilege extends beyond communications that expressly request or provide legal advice. It covers confidential communications forming part of the necessary continuum of information exchanged between lawyer and client so that legal advice may be sought and given as required.

The relevant inquiry is whether the communications were made in a relevant legal context, concerned the client’s rights, liabilities, obligations or remedies, and fell within the policy underlying legal advice privilege. Information, factual briefings, agendas and minutes may therefore be privileged where they are prepared by lawyers as an integral part of providing legal advice. The result differs where lawyers merely perform administrative or business functions unrelated to legal advice.

Property Alliance Group Ltd claimed that RBS had induced it to enter into interest rate swaps by implicitly representing that it was not rigging GBP LIBOR. During the proceedings, RBS claimed legal advice privilege over 81 high-level documents prepared by Clifford Chance for an Executive Steering Group overseeing regulatory investigations and related litigation.

Following an earlier order by Birss J under CPR 31.19(6), Mr Justice Snowden inspected the documents and determined whether the privilege claims were well-founded and whether any redacted versions should be disclosed. The central issue was whether the documents formed part of the confidential solicitor-client communications made for the purpose of obtaining or giving legal advice.

1. Privilege upheld. RBS’s claim to legal advice privilege over all the ESG High Level Documents was upheld. No redacted versions were required.
2. The court applied the basic principle stated in Three Rivers District Council v Bank of England (No.6) [2004] UKHL 48, [2005] 1 AC 610, drawing on the formulation in Price Waterhouse v BCCI Holdings (Luxembourg) SA [1992] BCLC 583. Privilege attaches to confidential communications between solicitor and client for the purpose of giving or obtaining legal advice, including communications through an intermediate agent.
3. Following Balabel v Air India [1988] 1 Ch 317, legal advice includes advice about what should prudently and sensibly be done in the relevant legal context. The privilege extends to the continuum of communications and meetings intended to keep lawyer and client informed so that advice may be sought and given as required.
4. The documents were created in a relevant legal context. Clifford Chance was engaged to advise RBS concerning regulatory investigations and related claims affecting its rights, liabilities, obligations and possible remedies under private and public law.
5. The tabular memoranda provided information about the investigations as a basis for discussions and further instructions. The meeting summaries recorded information, legal impressions, answers to questions and suggestions about next steps. Their factual content did not prevent privilege because it formed part of the confidential exchange directed towards legal advice.
6. Financial Services Compensation Scheme v Abbey National Treasury Services plc [2007] EWHC 2868 (Ch) and Atos Consulting v Avis plc (No. 2) [2007] EWHC 323 (TCC) concerned different issues involving internal documents and redactions. They did not require a litigant to redact and disclose privileged communications sent confidentially by its lawyer.
7. The fact that Clifford Chance also set agendas, led discussions and prepared minutes did not remove privilege. Those functions were performed as an integral part of providing legal advice, rather than as mere administrative convenience.

Earlier in the proceedings, Birss J directed inspection of the documents following a judgment dated 8 June 2015, reported at [2015] EWHC 1557 (Ch). The present first-instance judgment determined the privilege issue.