Three Rivers District Council & Ors v The Governor & Company of the Bank of England Rev 1

Three Rivers District Council & Ors v The Governor & Company of the Bank of England Rev 1

Legal advice privilege does not extend to documents or memoranda prepared by employees or ex-employees of a corporate client for the purpose of being shown to solicitors for advice, unless they are actual communications between client and solicitor (or their agents acting as such). The dominant purpose test does not apply to legal advice privilege, only to litigation privilege. The Bank of England is not entitled to claim privilege over the disputed categories of documents.

Parties
Claimant/appellant: Three Rivers District Council & Ors; Defendant/respondent: The Governor & Company of the Bank of England
Jurisdiction
England and Wales
Judgment Date
03 April 2003
Procedural Posture
Civil Appeal (interlocutory) / Court of Appeal Judgment on Appeal From High Court (interlocutory Application Regarding Disclosure and Legal Professional Privilege)
Outcome
Appeal allowed
Legal Topics
Legal Advice Privilege, Litigation Privilege, Disclosure of Documents, Solicitor Client Communications, Dominant Purpose Test
Civil Procedure Evidence Legal Professional Privilege Legal Advice Privilege Litigation Privilege Disclosure of Documents Solicitor Client Communications Dominant Purpose Test

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Parties

Three Rivers District Council & Ors

Claimant/appellant

The Governor & Company of the Bank of England

Defendant/respondent

Procedural Posture

Civil Appeal (interlocutory) / Court of Appeal Judgment on Appeal From High Court (interlocutory Application Regarding Disclosure and Legal Professional Privilege)

Legal Issues

  1. 1 Does legal advice privilege extend to documents prepared by employees or ex-employees of a corporate client for the purpose of being shown to solicitors for advice, but not actually communicated?
  2. 2 Is the dominant purpose test applicable to legal advice privilege as it is to litigation privilege?
  3. 3 What is the proper scope of legal advice privilege in the context of non-adversarial inquiries?

Ratio Decidendi

Legal advice privilege does not extend to documents or memoranda prepared by employees or ex-employees of a corporate client for the purpose of being shown to solicitors for advice, unless they are actual communications between client and solicitor (or their agents acting as such). The dominant purpose test does not apply to legal advice privilege, only to litigation privilege. The Bank of England is not entitled to claim privilege over the disputed categories of documents.

Court Disposition

Appeal allowed

Orders

  • Declaration granted in terms set out in the judgment (subject to agreed wording): only documents in the Bank's possession which are actual communications between client and solicitor are privileged; internal memoranda and preparatory documents are not privileged.
  • Bank ordered to serve a further and better list of documents in accordance with the declaration.