Legal advice privilege attaches to ‘continuum of communications and meetings’ (Property Alliance v RBS)

The Chancery Division has considered the principles of legal advice privilege and upheld a claim to it following inspection of the documents in question. In doing so, the High Court has clarified the extent to which communications between a lawyer and its client—which do not, of themselves, explicitly refer to legal advice—may be covered by legal advice privilege to the extent that they form ‘part of the ‘necessary exchange of information of which the object is the giving of legal advice as and when necessary’ (the ‘continuum of communications’). In the present case, the meetings out of which the documents arose all had very substantial legal content and had (unsurprisingly) been led by the lawyers present. The claim to legal advice privilege was therefore upheld.

Practical implications

This judgment is of interest to practitioners in its clarification of some of the types of documents which may or may not be covered by legal advice privilege, particularly in the context of regulatory investigations. Some of the practical implications which arise, include that:

• in the context of regulatory investigations (as this was), dealing with and coordinating communications and responses is a serious and complex matter in which advice and assistance from specialist lawyers will naturally be sought by a client
• it is entirely understandable to give lawyers a leading/co-ordinating role such that they arrange meetings and set agendas as part (though not necessarily the primary part) of the provision of their legal services
• documents created in this context (even in tabular format) by way of updates and summaries fall precisely into the category of ‘continuum of communication’ (see below) over which legal advice privilege can be claimed. In other words, even if those documents do not expressly refer to legal advice or include words to the effect of ‘please advise me’, they may be protected by legal advice privilege where they were provided as part of the necessary exchange of information, the object of which was the giving of legal advice privilege