A v B & Anor

Legal advice privilege requires a confidential communication between solicitor and client for the purpose of giving or obtaining legal advice. The communication may advise what should prudently and sensibly be done in a legal context; it need not state a legal rule. Documents disseminating legal advice may also be privileged if confidentiality is preserved.

The person asserting privilege must establish that the document’s dominant purpose was to give or obtain legal advice and must identify advice communicated by the document. A lawyer’s involvement, a privileged label, metadata, or the fact that a document takes account of legal advice is insufficient. Where a document visibly contains a discrete communication of legal advice, redaction may be appropriate even though the document as a whole is not privileged.

The judgment concerned B’s counterclaim in proceedings involving A and the Financial Reporting Council Ltd. B claimed that six documents could be withheld from production under paragraph 1(8) of Schedule 2 to SATCAR on grounds of legal professional privilege.

Five documents were said to attract legal advice privilege: executive committee minutes, board minutes, a risk register and a draft chairman’s script. A further document was said to attract litigation privilege. The judgment addressed the legal advice privilege claims and considered whether the documents themselves disclosed legal advice.

1. Applicable principles. Legal advice privilege attaches to confidential communications between solicitors and clients for giving or obtaining legal advice, including advice as to what can or should prudently and sensibly be done in a legal context. Internal corporate documents reproducing legal advice may qualify where dissemination does not destroy confidentiality. The dominant purpose of the communication or document must be to give or obtain legal advice: the court followed the binding decision in CAA v R (Jet2.com) [2020] EWCA Civ 35.
2. Identification of advice. The document must itself communicate or disclose the advice, directly or by an obvious inference. A document is not privileged merely because a lawyer prepared or edited it, because it is marked privileged and confidential, because metadata identifies a lawyer, or because it reflects a commercial decision made after legal advice. The court applied FSCS v Abbey National Treasury Services [2007] EWHC 2868 (Ch) and Atos v Avis [2007] EWHC 323 (TCC).
3. Documents examined. The executive committee minutes and board minutes were records of meetings and did not record legal advice. The risk register recorded commercial risk mitigation and did not disclose the substance of any advice. The draft chairman’s script was not privileged as a whole, but the visible deleted Freshfields comment communicated legal advice and was appropriately redacted. The privilege claims in respect of the documents as a whole therefore failed.
4. The court examined the documents because the party seeking disclosure had seen them, the issues turned on how information was conveyed, and inspection would provide assurance as to the robustness of the privilege decision.