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  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  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. , . 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. , .
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  and whether they had done so.
Alex Cunliffe / 22nd Oct 2019
The information and any commentary on the law contained on this web site is provided free of charge for information purposes only. Every reasonable effort is made to make the information and commentary accurate and up to date, but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by any member of Chambers. The information and commentary does not, and is not intended to, amount to legal advice to any person on a specific case or matter. You are strongly advised to obtain specific, personal advice from a lawyer about your case or matter and not to rely on the information or comments on this site. No responsibility is accepted for the content or accuracy of linked sites.
If you like what you've read but want to know more about how we can help you, simply call us:
Alternatively you can send us an email and a member of our team will contact you as soon as possible.