Legal Professional Privilege: a tide on the ebb?

Generally speaking, the law’s protection of legal professional privilege (both legal advice privilege and litigation privilege) is absolute, but the courts do not always welcome the resulting inhibition on their ability to get to the truth, and the boundaries of privilege are often quite vigorously policed. In this talk Amanda and Charles examine two recent lines of authority, which might both be said to contribute to an overall picture of courts and regulators presently being willing to take the pruning shears to privilege in quite a dramatic fashion. The first relates to the exclusion of privilege from the professional disciplinary and/or regulatory sphere. Amanda discusses the potential significance of the decision of Arnold J in Financial Reporting Council Ltd v Sports Direct International plc [2018] EWHC 2284 (appeal outstanding) and the Bar Standards Board’s new approach to issues of client privilege. The second relates to the strict confinement of litigation privilege to third party communications for the purpose of gathering information or advice. Litigation privilege had previously been seen by many as providing a general zone of privacy for the conduct of litigation, but Charles considers the impact of the Court of Appeal’s recent decisions in Director of the Serious Fraud Office v Eurasian Natural Resources Corporation Ltd [2018] EWCA Civ 2006 and WH Holding Ltd v E20 Stadium LLP [2018] EWCA Civ 2652.