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Vital ruling reasserts fundamental principle of client-lawyer confidentiality

5 September 2018

Justice received a shot in the arm today with a landmark ruling from the Court of Appeal, which ensures that clients seeking legal advice when they fear prosecution will have their confidentiality protected.

So important a legal principle is the ‘legal professional privilege’ in a client’s communications with their lawyers that the Law Society of England and Wales intervened in the case – The Serious Fraud Office v Eurasian Natural Resources Corporation Ltd (SFO v ENRC).

“Maintaining confidentiality and trust between a client and their legal adviser is fundamental to our legal system,” said Law Society president Christina Blacklaws.

“As a result of this ruling an individual or organisation facing criminal prosecution can be far more confident that discussions with their solicitors will remain confidential.”

The Law Society intervened in the case to address the matters of principle raised by the original High Court ruling. The High Court had ordered ENRC to disclose to the SFO documents prepared by the company’s lawyers which the company said were covered by legal professional privilege - which guards the confidential communication between clients and their legal advisers.

Christina Blacklaws added: “Our involvement wasn’t about the underlying case, but about the principles at stake.

“If the High Court ruling had been upheld, any organisation facing a prosecution – not just multinationals, but charities, newspapers, small businesses or local authorities – could have to turn over private communications with their lawyers.

“The rule of law depends on all parties being able to seek confidential legal advice without fear of disclosure. That privilege belongs to the client, not the lawyer.

“We’re delighted the Court of Appeal agreed with our arguments around the practical implications of the High Court judgment.

“Perversely, a lack of privilege in these cases could have made it more difficult to uncover wrongdoing, as organisations might have been less willing to investigate issues to their full extent without the protection offered by legal professional privilege.

“The original ruling also appeared to exclude from the scope of that protection client discussions with lawyers aimed at reaching a settlement. We argued, and the Court of Appeal also accepted, was wrong.”

The Law Society was represented in the case by Dinah Rose QC and David Pievsky of Blackstone Chambers, instructed by Eoin O’Shea of Reed Smith.

Notes to editors

    As part of the Law Society’s written submissions to the court, the below examples were provided of the potential impacts of the original High Court judgment:
  1. A doctor is accused by a complainant of negligence after one of his patients, a relative of the complainant, dies. He has not been formally charged; neither the GMC, nor the police, are investigating at this stage. But he wishes to consult a solicitor with a view to obtaining evidence from a relevant expert who may assist his defence. Whether he can invoke litigation privilege should not depend on whether he is willing to assert that there was good evidence supporting the allegation that he had been negligent. The judge’s approach would force him, in effect, to choose between exercising his right to privilege and his right against self-incrimination.
  2. A person is arrested on suspicion of assault. His defence is mistaken identity. He has not been charged. He wishes to consult a solicitor with a view to interviewing third parties about his whereabouts on the day in question. There can be no question of him being able to describe evidence which implicates him: he is innocent and considers there to be no evidence against him at all. It would be wrong to deny him the ability to invoke litigation privilege.
  3. A teacher is dismissed from her employment, after an allegation is made that she was seen taking class A drugs. The teacher tells her solicitor that the allegation was false. She is terrified about being arrested by the police for drug offences, or there being any kind of criminal proceedings, which she believes will seriously prejudice her attempts to find alternative employment as a teacher. The teacher believes that the pupil had a grudge against her and tells her solicitor that the pupil had demonstrably lied about various other more minor matters, which the school did not take into account. She should be able to instruct a lawyer to interview third parties who may be able to provide evidence supporting her case.
  4. A man with learning difficulties and a psychological condition is arrested, after an accusation of rape. He tells his solicitor that the complainant consented. A key issue may be his personal capacity to evaluate consent, and the reasonableness of his belief. The solicitor wishes to commission an expert report in order to advise on how the client should defend himself. To do so without prejudicing his client’s position she needs to be confident that (a) the factual account of what happened, provided to the expert, (b) the client’s description of his mental condition, and (c) the opinion of the expert, will remain confidential. Under the High Court ruling she would not have that confidence.
  5. Finally, a large organisation such as a company, a university, or a public authority, is accused of wrongdoing carried out by its employees. A regulator may take preparatory steps indicating that it has concerns about the alleged conduct. Or the organisation itself, bearing in mind that it needs to take allegations of serious wrongdoing seriously, and in order to decide whether to self-report, may instruct lawyers to investigate and ascertain how strong or weak its position is. Litigation may well, in these scenarios, be in reasonable contemplation.

About the Law Society

The Law Society is the independent professional body that works globally to support and represent solicitors, promoting the highest professional standards, the public interest and the rule of law.

Press office contact: Chris Steer | christopher.steer@lawsociety.org.uk | +44 (0)20 7316 5624