LORELEY FINANCING (JERSEY) No 30 LIMITED v CREDIT SUISSE SECURITIES (EUROPE) LIMITED & Ors

The identity of a person communicating with a lawyer attracts legal professional privilege only where the communication itself is privileged and disclosure of the identity would undermine that privilege. The rule applies equally to a person authorised to give instructions in litigation.

Litigation privilege may protect communications between lawyer and client even where legal advice privilege also applies. Whether identity is protected is fact-sensitive. A general “zone of privacy” is descriptive, not a separate legal test. The party claiming privilege must provide sufficiently specific evidence. Privilege does not automatically attach to the identity of authorised instructing individuals.

Loreley, a special purpose vehicle, brought fraud and conspiracy claims concerning its purchase of structured notes. Credit Suisse sought information under CPR Part 18 about whether IKB or KfW had decided to pursue the litigation or was providing instructions to Loreley’s solicitors. Loreley claimed litigation privilege over the identities of authorised instructing individuals and maintained redactions in board minutes and an engagement letter.

The central issue was whether the identity of persons authorised to instruct solicitors on behalf of a corporate client in ongoing litigation was protected by litigation privilege, and whether the remaining redactions were justified by litigation or legal advice privilege.

1. Identity and privilege. The court held that the relevant inquiry has two parts: whether the communication identifying the person is privileged, and whether disclosure of the identity would undermine that privilege. The same approach applies whether the communicator is authorised to give instructions or has another role.
2. Litigation privilege. Litigation privilege may apply to lawyer-client communications even where legal advice privilege is available. This does not expand the established scope of litigation privilege, which requires existing or contemplated adversarial litigation and communications made for the sole or dominant purpose of conducting it. The two privileges may protect the same communication.
3. Fact-sensitive assessment. The expression “zone of privacy” may describe the general protection afforded to litigation preparation, but it is not the governing test. The identity of an authorised instructing person is not automatically privileged. The court must examine the particular circumstances, including whether disclosure would reveal or provide clues to the content of instructions or litigation strategy.
4. In this case Loreley produced no evidence that disclosure of the identities would undermine privilege. It therefore had no litigation privilege in respect of that information. The conclusion did not determine whether the information was relevant to the limitation issues.
5. Redactions. Loreley was required to identify the individuals tasked with obtaining or receiving legal advice. The remaining redactions were to be reviewed separately under legal advice privilege and litigation privilege. Any maintained claim had to be supported by evidence as specific as possible without disclosing the protected matter. The identity application was therefore granted, subject to directions for reconsideration of the remaining redactions.