Legal Profession

The court had to consider whether or not legal professional privilege applied to documents seized in the course of an investigation into
price-fixing.

HELD So that a person may effectively be able to consult a lawyer without constraint, and so that the latter may effectively perform his role as collaborating in the administration of justice by the courts and providing legal assistance for the purpose of the effective exercise of the rights of the defence, it may be necessary, in certain circumstances, for the client to prepare working documents or summaries.

In particular, this will be a means of gathering information which will be useful, or essential, to that lawyer for an understanding of the context, nature and scope of the facts for which his assistance is sought.

Preparation of such documents may be particularly necessary in matters involving a large amount of complex information. In those circumstances, the fact that the commission reads such documents during an investigation may prejudice the rights of the defence of the undertaking under investigation and the public interest in ensuring that every client is able to consult his lawyer without constraint.

Accordingly, such preparatory documents, even if they were not exchanged with a lawyer or were not created for the purpose of being sent physically to a lawyer, may however be covered by LPP, provided that they were drawn up exclusively for the purpose of seeking legal advice from a lawyer in exercise of the rights of the defence.

Although, the mere fact that a document has been discussed with a lawyer is not sufficient to give it such protection (para 122 and 123). However, following AM & S v Commission [1983] QB 878, [1983] 1 All ER 705, communications with in-house lawyers, that is, legal advisers bound to their clients by a relationship of employment, are expressly excluded from protection under LPP (paras 167-9).