Q&As

I am a shareholder in company X. A director obtained legal advice on behalf of company X and I would like to see it. The director has claimed the document is privileged. Am I entitled to see it?

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Produced in partnership with Howard Smith of Radcliffe Chambers
Published on LexisPSL on 21/11/2017

The following Dispute Resolution Q&A produced in partnership with Howard Smith of Radcliffe Chambers provides comprehensive and up to date legal information covering:

  • I am a shareholder in company X. A director obtained legal advice on behalf of company X and I would like to see it. The director has claimed the document is privileged. Am I entitled to see it?

I am a shareholder in company X. A director obtained legal advice on behalf of company X and I would like to see it. The director has claimed the document is privileged. Am I entitled to see it?

Privilege comes in a number of forms and is a means of seeking to prevent an opponent from being able to inspect various disclosable documents.

For guidance on privilege, including how it can arise, how it can be lost or waived and the implications of doing so (whether purposefully or inadvertently), see: Privilege and without prejudice communications—overview. This, in turn, links through to more detailed guidance on each of these, and many other, aspects of privilege.

A distinction needs to be drawn between disclosure and inspection in the course of litigation, and inspection of documents other than in the course of litigation. See Practice Note: Disclosure—introduction.

In the course of litigation, a company will generally be required to disclose to shareholders legal advice on the running of the company’s affairs, where it has been obtained by or on behalf of the company and paid for out of the company’s assets (Sharp v Blank).

The exception is where the advice is obtained specifically for the purpose of hostile litigation against the shareholder (CAS Nominees Ltd v Nottingham Forest plc, Dennis, Arrow Trading and Hydrosan).

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