Legal Advice Privilege – As Hard As Nails

In the recent decision of Addlesee and others v Dentons Europe LLP [2019] EWCA Civ 1600 (2 October 2019) the Court of Appeal found that legal advice privilege attaching to documents survives the dissolution of a former client company and disclaimer by the Crown of any interest in the documents.

The decision overturned the previous decision of Garvin Trustees Ltd v The Pensions Regulator (FS/2010/0010 & 11) which found that legal advice privilege would be lost where there was no possibility of the dissolved company being restored to the register. The Court of Appeal disagreed with the reasoning in Garvin and found that it did not appear to consider the public policy that underpins legal advice privilege

It has been made clear that legal advice privilege attaching to documents can never be deemed waived or “lost” as a result of a company being dissolved or the Crown disclaiming its interest in the privileged documents. The Court held that once legal advice privilege has been established it can only be waived by the party with the benefit of the privilege, in this case the dissolved company. It did not matter that the company would require to be restored before it would be capable of waiving the privilege.

This decision majors on the strong public policy reasons for maintaining legal advice privilege and finds that it is a fundamental human right. It has maintained that clients should have absolute confidence in the protected nature of their communications with their lawyers for the purpose of obtaining legal advice.

This article has been produced for general information purposes and further advice should be sought from a professional advisor. Please contact our Insolvency & Business Restructuring team at Cleaver Fulton Rankin for further advice or information.

Rachel Kelly, Associate , Insolvency & Business Restructuring team, Cleaver Fulton Rankin, Solicitors.

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