Privilege in Something of a Mess in England

If it is true that lawyers and judges (at the end of their careers) are judged by their contribution to the law then the state of legal professional privilege in England might suggest that a few have some reflection to do.

In a series of first instance High Court decisions in England, during the last year or so, the ambit of litigation privilege appears to have been reined in to such an extent that statements taken from prospective witnesses during a company's internal investigations have not been protected. Apparently, this was on the basis (among other things) that on the facts litigation was not in reasonable contemplation despite there being an ongoing regulatory investigation.

While such decisions might be justified in individual cases they may represent a worrying trend. There have also been attempts to restrict litigation privilege in the context of criminal investigations by making a distinction between when a prosecution is in reasonable contemplation compared with when civil proceedings are in reasonable contemplation. Lawyers' notes of interviews have also drawn the attention of some regulators.

In one high profile case, the English Court of Appeal is expected to provide some clarification on the ambit of litigation privilege under English common law (SFO v ENRC); at the time of writing, this appeal is due to be heard in July 2018. Such is the encroachment on the privilege, it has been reported that the Law Society of England & Wales has sought to intervene in the appeal.

The state of litigation privilege in England is particularly worrying given the state of legal advice privilege – remnants of one of the Court of Appeal judgments in Three Rivers appear to survive as regards the restrictive meaning of "client" in a corporate context.

Fortunately (without encouraging complacency) legal professional privilege in Hong Kong SAR is on a much firmer footing (Industry Insights, May 2017 – "Hong Kong as a Benchmark for Privileges and Immunities"; and November 2015 – "A Tale of Two Privileges"). This is particularly true since the landmark judgment of the Hong Kong Court of Appeal in Citic Pacific Ltd v Secretary for Justice (No. 2) in 2015.

Even where litigation privilege may not apply in Hong Kong, legal advice privilege will generally apply where lawyers are involved in the continuum of the communication process to obtain legal advice. In this respect, Hong Kong common law has more regard for the leading judgment of Taylor LJ (as he then was) in Balabel & Anor v Air India [1988] 1 Ch. 317 – a case which is taught in Hong Kong law schools but which appears to be in a state of some neglect in England.

For readers in Hong Kong wanting more, they could do little better than revisit the judgment of Ma J (as he then was) in Yau Chiu Wah v Gold Chief Investment Ltd & Anor, HCA 807/2001, 21 May 2003 (reported):

"Generally, almost anything exchanged in confidence between the solicitor and his client is privileged, providing the solicitor is acting in his professional capacity. In other words, any confidential communications to or from a solicitor in connection with the professional capacity in which a solicitor is engaged (ie giving legal advice) will generally be privileged". (para. 43)

A fitting tribute to the memory of Lord Taylor of Gosforth – twenty-one years since his untimely death and some twenty-one years into "One Country, Two Systems".

Senior Consultant, RPC

Partner, RPC