The Court of Appeal has held that the identity of those instructing lawyers on behalf of a corporate client are not generally protected by litigation privilege: Loreley Financing (Jersey) No 30 Ltd v Credit Suisse Securities (Europe) [2022] EWCA Civ 1484. In doing so it largely agreed with the reasoning of the High Court, as summarised in our blog post on that decision.
The court rejected the notion that litigation privilege protects all information falling within a “zone of privacy” around a party’s preparation for litigation. Instead, it emphasised that privilege attaches to communications (including secondary evidence of those communications) rather than information or facts divorced from them. Accordingly, there is no general principle that the identity of those giving instructions to a lawyer for the purposes of litigation will be protected.
The court recognised an exception, where the disclosure of the relevant individual’s identity would inhibit candid discussion with the lawyer and therefore affect the client’s ability to prepare its case – eg because it might tend to reveal something about the content of the communication with the lawyer or the litigation strategy being discussed. But that would have to be explained as the basis for the claim to privilege.
Background
The court considered whether the identity of individuals authorised to give instructions in relation to the proceedings on behalf of the claimant, a special purpose vehicle with no employees whose directors are supplied by a professional services company, were protected by litigation privilege. This information was said to be relevant to the question of whose knowledge could be attributed to the claimant for limitation purposes.
The High Court held that whether the identity of a person communicating with a lawyer is privileged depends on two requirements: (i) whether the communication is privileged; (ii) whether that privilege would be undermined by the disclosure of identity sought. It held that those requirements were not met in the present case, and so the identities of those authorised to give instructions on behalf of the claimant were not protected by privilege.
The claimant appealed, arguing that the identity of those authorised to give instructions to solicitors on behalf of a corporate client in the course of litigation is necessarily covered by litigation privilege, as it falls within a “zone of privacy” established by the privilege, and does not depend on whether privilege would be undermined by disclosure of the identity.
Decision
The Court of Appeal, in agreement with the High Court, rejected the claimant’s case that the identity of those giving instructions on its behalf was inherently privileged. However, it set aside the High Court’s declaration that the identities were not subject to privilege, commenting that a declaration in such general terms would serve little or no purpose and the question of privilege ought to be tested by reference to particular communications rather than in the abstract. Lord Justice Males gave the leading judgment with which Lady Justice Nicola Davies and the Sir Geoffrey Vos MR agreed.
Males LJ noted that there was no previous authority addressing the question of whether the identity of those authorised to give instructions to solicitors on behalf of a corporate client is covered by litigation privilege. It was therefore necessary to consider the matter as one of principle.
He noted that the classic statement of the requirements for litigation privilege, set out in the speech of Lord Carswell in Three Rivers (No. 6) [2004] UKHL 48, is entirely concerned with communications:
“(a) litigation must be in progress or in contemplation; (b) the communications must have been made for the sole or dominant purpose of conducting that litigation; (c) the litigation must be adversarial, not investigative or inquisitorial.”
Males LJ also noted the rationale for litigation privilege, as set out in numerous cases. That is (in summary) to allow a client to consult a lawyer in confidence, and prepare its case, without fear that the facts communicated or material generated will be revealed without the client’s consent.
He concluded that whether litigation privilege extends to the identity of the persons communicating with a solicitor in relation to litigation depends on whether disclosure of that identity would inhibit candid discussion with the lawyer. If so, their identity should be privileged, but otherwise extending privilege in this way is unnecessary and may deprive the court of relevant evidence needed to determine the case justly.
In general, disclosure of the identity of the person communicating with the lawyer would reveal nothing about the content of the communications, and therefore would not affect the client’s ability to prepare its case. There may be unusual cases in which the identity of the individual giving the instructions might tend to reveal something about the content of the communication or the litigation strategy being discussed, but he rejected the claimant’s examples of where that might be the case as far-fetched (ie where the individual’s job was to settle litigation or they were known to have expertise in issues of quantum). If a party wished to assert privilege on that basis, it would need to be explained in evidence – though in sufficiently general terms as not to disclose the very thing for which privilege was claimed.
Males LJ noted that there are exceptional cases where the identity or contact details of a client have been found to be privileged, describing these as special cases in which there was evidence to explain the claim for privilege – for example JSC BTA Bank v Ablyazov [2012] EWHC 1252 (Comm) where the client had been found to be in contempt of court and was sentenced to a term of imprisonment. It was held that his contact details had been communicated to the solicitor in confidence for the purpose of enabling him to seek legal advice and were therefore protected by privilege.
For further information, please contact:
Anna Pertoldi, Partner, Herbert Smith Freehills
anna.pertoldi@hsf.com
