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A clear steer towards challenging Three Rivers (No.5) [see separate entry] in the Supreme Court.This is an extra judicial statement.

Extracted from ‘The scope and role of the Legal Professional Privilege and its proper place in the context of corporate internal investigations’. An address given at a meeting in support of ‘Youth at Risk’.

Lord Neuberger said,

  1. Another rather different issue which arises in the case of a large corporate client, is, given that LAP only applies to communications between a lawyer and the corporate client she is advising, the question arises: which individuals constitute “the client”? The effect of the Court of Appeal’s 2003 decision in Three Rivers (No 5) is that LAP does “not apply to documents communicated to a client or his solicitor for advice to be taken on them, but only to communications passing between that client and his solicitor” and associated documents. So, LAP does not appear to attach to communications between the solicitor and employees or agents of the corporate client, other than the individuals actually being advised by the solicitor – eg the chairman, the CEO, the COO, and the CFO, or the executive committee, or a group specially designated by the board or the CEO or chairman. This approach, which gives a rather narrow meaning to the “client”, has not been followed in a number of other common law jurisdictions, where the expression effectively appears to include all employees (and maybe agents) of the corporate client.

  2. Although the House of Lords refused leave to appeal in Three Rivers (No 5), they said in the subsequent Three Rivers (No 6) decision that each of the competing views on the point at issue was “eminently arguable”, but did not say, or even hint, which they thought was right. So for the moment at least, the sensible course is probably to proceed on the basis that the law as to the“client” for LAP purposes is as laid down in Three Rivers (No 5), although it may in due course be distinguished on its facts, overruled – or affirmed. To adapt a well-known phrase, in my position I can say that, but I can’t possibly comment.

 

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