Legal Professional Privilege: Addlesee and others v Dentons Europe LLP

Author David Castor Licence CCO 1.0 Source Wikipedia Royal Courts of Justice

Jane Lambert

Court of Appeal (Lords Justices Lewison, Floyd and Hamblin) Addlesee and others v Dentons Europe LLP [2019] EWCA Civ 1600 (2 Oct 2019)

This was an appeal against Master Clark's refusal to order disclosure of certain documents on the grounds that they were privileged.  The applicants for disclosure were investors in a Cypriot company called Anabus Holdings Ltd ("Anabus") and the respondents were Anabus's former solicitors. Anabus had been wound up though it would still have been possible to restore it to the register.  The applicants, who had lost a lot of money from investing in Anabus, had brought deceit and negligence proceedings against the solicitors. At paragraph [1] of his judgment, Lord Justice Lewison summarized the issue in this appeal as: "what happens to legal advice privilege attaching to communications between a company and its lawyers, once that company has been dissolved; and the Crown has disclaimed all interest in its former property?"

Garvin
The issue had previously come before the Upper Tribunal in Garvin Trustees Ltd, v The Pensions Regulator [2015] Pens LR 1,  In that case, Judge Herrington had held that legal professional privilege died with the dissolution of the corporate client.  His decision was binding on the master except in so far as, and to the extent that, she could distinguish it.  Master Clark had distinguished Garvin on the ground that the company could have been restored to the register in her case but not in the other.  In the course of the proceedings, the Lords Justices questioned whether Garvin had been decided correctly. They invited the respondents to submit a respondents' notice challenging the decision. 

The Issue
Lord Justice Lewison summarized the issue before the Court as follows:

"whether, legal professional or legal advice privilege having attached to a communication by reason of the circumstances in which the communication was made, the communication remains privileged unless and until privilege is waived; or whether the privilege is lost if there is no person entitled to assert it at the time when a request for disclosure is made."

The Authorities
Between paragraphs [5] and [22], Lord Justice Lewison analysed the authorities that set out the rationale for  legal professional privilege starting with Lord Taylor's speech in R v Derby Magistrates' Court [1995] UKHL 18, (1995) 159 JP 785, [1996] 1 Cr App Rep 385, [1995] 3 WLR 681, [1996] 1 FLR 513, [1996] 1 Cr App R 385, [1995] 4 All ER 526, [1996] AC 487, [1996] Fam Law 210, [1996] 1 AC 487:

"The principle which runs through all these cases, and the many other cases which were cited, is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests."

Lord Justice Lewison then considered the ambit of legal professional privilege including the so-called "iniquity exception" and the public interest in maintaining the privilege as expressed by Lord Taylor:

"The present case does not, with respect, involve a contest between competing private and public interests, but between two competing public interests of high importance: the public interest in the maintenance of the integrity of the legal profession and the public interest in the administration of justice. The former interest may be said to require that all relevant information be made available to those charged with the investigation and determination of complaints against legal practitioners. The latter requires that a lawyer must be able to give his client an absolute and unqualified assurance that whatever the client tells him in confidence will never be disclosed without his consent." (B v Auckland District Law Society at [47])

"… the seeking and giving of [legal] advice is strongly in the public interest" (Three Rivers at [34])

"The public interest in a party being able to obtain informed legal advice in confidence prevails over the public interest in all relevant material being available to courts when deciding cases." (Three Rivers at [112], citing Re L (A Minor) [1997] AC 16)."

His lordship noted that the Privy Council had held in Bullivant v Attorney-General for Victoria [1901] AC 196 that then privilege does not end with the death of the client or indeed the dissolution of a company.

Analysis of Garvin

Lord Justice Lewison noted that the judge in Garvin Trustees Ltd v The Pensions Regulator described legal professional privilege as "simply the right to resist the compulsory disclosure of information" and that it was up to the person who held that right to asset it.  The learned judge took as his starting point the proposition that the company could not assert the privilege because following the dissolution it had ceased to exist. If it were to be entitled to assert any rights it would have to be restored to the register; and that could not be done because the relevant time limit had expired. He went on to consider the position of the Crown. He accepted that the legislation was wide enough to include as bona vacantia "a right to assert legal professional privilege which still persisted at the time of the dissolution of the company" but the Crown had not done so.

In Lord Justice Lewison's view, that was the wrong way round.  He said at paragraph [90]:

"The result of my analysis is that I would hold that legal advice privilege, once established, remains in existence unless and until it is waived. It is established as a result of the purpose for which, and the circumstances in which, the communication was made. Whether there is no one who can now waive it; or whether the Crown could have waived it but has not done so; does not matter. I would therefore overrule Garvin; and hold that the Master was right in her refusal to order disclosure; but for different reasons."

Lord Justices Floyd and Hamblin agreed.  The Master had found that the respondent solicitors had succeeded on most of the issues and ordered the applicants to pay 80% of the costs. They contested that award on the basis that the respondents did not have to take part in the application or even the appeal. The Court of Appeal rejected that argument and affirmed the Master's order.

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