Three Rivers District Council & Ors v The Governor & Company of the Bank of England Rev 1 [2003] EWCA Civ 474 (03 April 2003)

Three Rivers District Council & Ors v The Governor & Company of the Bank of England Rev 1 [2003] EWCA Civ 474 (03 April 2003)

Legal advice privilege is confined to communications between client and legal adviser (including through agents) and does not extend to internal documents or preparatory materials unless they are actual communications or evidence of such communications. Documents prepared by employees or ex-employees for the purpose of being shown to solicitors are not privileged unless they constitute or evidence a communication between client and solicitor. The dominant purpose test applies to litigation privilege, not to legal advice privilege in the absence of litigation.

Citation
[2003] EWCA Civ 474
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
Interlocutory Appeal (disclosure of Documents) / Court of Appeal (civil Division) on Appeal From High Court (queen's Bench Division, Commercial)
Outcome
Appeal allowed in part; legal advice privilege does not extend to all internal documents prepared for legal advice.
Legal Topics
Legal Professional Privilege, Legal Advice Privilege, Litigation Privilege, Disclosure of Documents, Corporate Client Privilege
Civil Procedure Evidence Banking Law Legal Professional Privilege Legal Advice Privilege Litigation Privilege Disclosure of Documents Corporate Client Privilege

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Parties

Three Rivers District Council & Ors

Claimant/appellant

The Governor & Company of the Bank of England

Defendant/respondent

Procedural Posture

Interlocutory Appeal (disclosure of Documents) / Court of Appeal (civil Division) on Appeal From High Court (queen's Bench Division, Commercial)

Legal Issues

  1. 1 Does legal advice privilege extend to documents prepared by employees for submission to solicitors?
  2. 2 Does privilege attach to documents prepared with the dominant purpose of obtaining legal advice but not actually sent to solicitors?
  3. 3 Is there a distinction between documents prepared by current and former employees?

Ratio Decidendi

Legal advice privilege is confined to communications between client and legal adviser (including through agents) and does not extend to internal documents or preparatory materials unless they are actual communications or evidence of such communications. Documents prepared by employees or ex-employees for the purpose of being shown to solicitors are not privileged unless they constitute or evidence a communication between client and solicitor. The dominant purpose test applies to litigation privilege, not to legal advice privilege in the absence of litigation.

Court Disposition

Appeal allowed in part; legal advice privilege does not extend to all internal documents prepared for legal advice.

Orders

  • Documents prepared by employees or ex-employees are not privileged unless they are actual communications with legal advisers or evidence of such communications.
  • Disclosure ordered for documents not constituting communications between client and solicitor.