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Commercial: Addlesee and others v Dentons Europe LLP [2019] EWCA Civ 1600, [2019] 10 WLUK 10

C issued proceedings against solicitors who had acted for a now dissolved company, the company purportedly having operated a fraudulent scheme. C wished to see documents that passed between the dissolved company and D, which D asserted were privileged.

The Court of Appeal overruled the decision in Garvin Trustees Ltd v The Pension Regulator [2015] Pens LR 1, to the effect that legal advice privilege did not survive the dissolution of a company. The proper question was not who could assert privilege but instead who could waive it and, if there was a person entitled to waive privilege, whether they had done so.

The Court of Appeal took as a basis the principles set out in R. v Derby Magistrates’ Court Ex p. B [1996] A.C. 487 that a person had to be able to consult their lawyer in confidence, and that what was said in confidence would never be revealed without their consent.

The establishment of legal advice privilege depended on the nature and purpose of the communication and the circumstances under which it had been made. [24], [26]. Where the client’s purpose was fraud, the iniquity exception did not retrospectively strip away privilege, but instead, no privilege attached the communication at all. The exception did not therefore conflict with the principle (or its underlying rationale) that, once it attached, privilege remained unless waived by the client. [28], [29].

The Court also dismissed an argument that policy supported refusing to extend privilege to a dissolved organisation, this being the wrong way to look at the question. D was not seeking to extend the scope of privilege; instead C needed to extend the circumstances in which privilege ceased to apply. The immunity from production created belonged to the person who was the client at the time of its creation and then attached to the communication. Once the client ceased to exist, the only remaining question was whether there was anyone who had the right to waive it [45] and whether they had done so.

Alex Cunliffe / 22nd Oct 2019


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