What are the privilege issues which arise in relation to a regulatory investigation?

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Published on LexisPSL on 20/11/2017

The following Corporate Crime Q&A provides comprehensive and up to date legal information covering:

  • What are the privilege issues which arise in relation to a regulatory investigation?
  • Professional privilege—core principles
  • Privilege arising in internal investigations
  • What is the difference in the protections afforded by legal advice privilege as opposed to litigation privilege?
  • Issues of privilege in regulatory (or criminal) investigations
  • Cross border concerns

Professional privilege—core principles

The core aim of privilege is to protect the confidentiality of communications between clients and their lawyers. The right belongs to the client and not to the lawyer. The definition of ‘client’ in a civil litigation context in the UK was limited in the landmark case of Three Rivers District Council v Bank of England (No 5) where the definition of the 'client' bank was limited to the working group set up to prepare a response from the bank to an inquiry. The scope was not extended to employees of the bank outside that working group.

In Astex Therapeutics Ltd v Astrazeneca AB applying Three Rivers (No 5), the High Court held that certain employees were not part of the 'client' for privilege purposes. For a detailed consideration of this decision, including practical implications arising from it, see News Analysis: Hiding communications behind the cloak of legal advice privilege (Astex and RBS Rights).

The extent to which various types of advice given within the context of the lawyer’s retainer are covered by privilege was discussed in Balabel v Air India and Three Rivers v Bank of England (No 5). Amongst other things it must include: 'advice as to what should prudently and sensibly be done in the relevant legal context'. See Practice Note: Legal professional privilege (LPP) under Legal professional privilege (LPP)—Legal advice privilege

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