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Making the most of privilege

Not all documents prepared by lawyers can benefit from protection unless there is a clear indication of a qualitative legal assessment for advice purposes, warns Caroline Field

19 July 2017

Privilege in communications between clients and lawyers is a fundamental human right. The decision in Three Rivers District Council and others v Governor and Company of the Bank of England (No 5) [2003] EWCA Civ 474 was widely regarded as an attack on that right. Some hoped that the impact of Three Rivers would be mitigated by subsequent decisions confining the scope of that case to its own particular facts.

Recent UK decisions such as RBS Rights Issue Litigation [2016] EWHC 3161 (Ch) and Serious Fraud Office v Eurasian Natural Resources Corporation [2017] EWHC 1017 (QB) make clear the support for its general application such that legal advice privilege (LAP) does not extend to documents obtained from third parties – defined as anyone other than the client (or a person tasked by the client) seeking or obtaining legal advice. This is so even if those documents were prepared for the purpose of being shown to ...

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