RBS ordered to hand over privileged documents in LIBOR manipulation case (Property Alliance Group v RBS)

Table of contents

• Practical implications
• The facts
• Challenges to legal advice privilege
• Challenges to litigation privilege
• Challenges to without prejudice privilege
• Waiver of privilege
• Court details

Article summary

Dispute Resolution analysis: the Chancery Division has ordered the Royal Bank of Scotland (RBS) to produce documents for inspection relating to its negotiations with the FSA (now FCA) leading up to its fine for LIBOR manipulation, over which RBS had claimed without prejudice privilege. In what appears to be the first decision on this point, the court held that without prejudice privilege could attach to settlement communications between a firm and a regulator during the course of its investigations ie outside the ‘normal’ civil litigation context (albeit RBS lost its claim to this privilege for other reasons). The court also ordered RBS to hand over to the court (for consideration of RBS’ privilege claims), documents involving its own internal Executive Steering Group, which was set up by RBS to consider the various investigations into the extent of its own LIBOR misconduct.