Ford, R (on the application of) v The Financial Services Authority [2011] EWHC 2583 (Admin) (11 October 2011)

Ford, R (on the application of) v The Financial Services Authority [2011] EWHC 2583 (Admin) (11 October 2011)

Joint legal professional privilege does not arise in the absence of a joint retainer unless the facts objectively demonstrate that the individuals communicated with the lawyer for personal advice, made this clear to the lawyer, and that all parties (including the lawyer) knew or ought to have known that privilege...

Source-derived case information.

Citation
[2011] EWHC 2583 (Admin)
Parties
Claimant: Stewart Ford; Defendant: Financial Services Authority; Interested Party: Peter Johnson; Interested Party: Mark Owen
Jurisdiction
England and Wales
Judgment Date
11 October 2011
Procedural Posture
Judicial Review / Final Judgment
Outcome
Claim dismissed
Legal Topics
Legal Advice Privilege, Joint Interest Privilege, Waiver of Privilege, Corporate Law, Regulatory Investigations
Administrative Law Financial Regulation Legal Professional Privilege Legal Advice Privilege Joint Interest Privilege Waiver of Privilege Corporate Law Regulatory Investigations

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Summary, issues, holding and outcome

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Parties

Stewart Ford

Claimant

Financial Services Authority

Defendant

Peter Johnson

Interested Party

Mark Owen

Interested Party

Procedural Posture

Judicial Review / Final Judgment

Legal Issues

  1. 1 Whether the claimant and interested parties can assert joint interest legal privilege over certain emails and attachments sent by Irwin Mitchell between February and June 2008.
  2. 2 Whether the administrators of Keydata could waive privilege in documents potentially privileged in the hands of the executives.
  3. 3 What is the correct test for establishing joint interest legal professional privilege in the context of company officers and corporate legal advice.

Ratio Decidendi

Joint legal professional privilege does not arise in the absence of a joint retainer unless the facts objectively demonstrate that the individuals communicated with the lawyer for personal advice, made this clear to the lawyer, and that all parties (including the lawyer) knew or ought to have known that privilege was shared. In this case, the evidence did not establish that Irwin Mitchell was advising the executives in their individual capacities at the relevant time, and thus the privilege belonged to Keydata alone and was validly waived by its administrators.

Court Disposition

Claim dismissed

Orders

  • Judicial review refused; the claimants and interested parties cannot assert joint interest legal privilege over the disputed emails and attachments.