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The extent of privilege

14 October 2019
Issue: 7859 / Categories: Legal News , Procedure & practice , Legal services , Fraud
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Legal advice privilege continues until and unless it is waived by the client or removed by statute, the Court of Appeal has held in a landmark case.

Addlesee & Ors v Dentons Europe [2019] EWCA Civ 1600 concerned negligence proceedings brought against Dentons by the investor in a scheme marketed by a Cypriot company that later dissolved. The company was advised by Salans, which has since been renamed Dentons Europe. The investor claimed the scheme was a fraud and sought disclosure of documents passed between Salans and the company, which were privileged at the time of communication. A court held that the privilege attached to the documents remains in place even though the company no longer exists.

On appeal, the investor reiterated its argument that privilege is a right solely for an identifiable client and the client’s successors in title. No third party was entitled to assert it. Where no legal person has a right to privilege, the right ceases to exist and the court cannot enforce it. Dentons argued that privilege continued unless waived by the client or overridden by statute.

Delivering his judgment, Lord Justice Lewison said: ‘The rationale for the privilege means that privilege comes into existence at the time when the person in question consults his lawyer. The client must be sure at the time when he consults his lawyer, that, without his consent, there are no circumstances under which the privileged communications will be disclosed without his consent.’

Lewison LJ said the investor’s arguments would amount to a ‘retrospective redrawing of the boundaries of legal advice privilege’. He clarified that his judgment referred only to legal advice privilege not litigation privilege.

MOVERS & SHAKERS

Gilson Gray—Linda Pope

Gilson Gray—Linda Pope

Partner joins family law team inLondon

Jackson Lees Group—five promotions

Jackson Lees Group—five promotions

Private client division announces five new partners

Taylor Wessing—Max Millington

Taylor Wessing—Max Millington

Banking and finance team welcomes partner in London

NEWS
The landmark Supreme Court’s decision in Johnson v FirstRand Bank Ltd—along with Rukhadze v Recovery Partners—redefine fiduciary duties in commercial fraud. Writing in NLJ this week, Mary Young of Kingsley Napley analyses the implications of the rulings
Barristers Ben Keith of 5 St Andrew’s Hill and Rhys Davies of Temple Garden Chambers use the arrest of Simon Leviev—the so-called Tinder Swindler—to explore the realities of Interpol red notices, in this week's NLJ
Mazur v Charles Russell Speechlys [2025] has upended assumptions about who may conduct litigation, warn Kevin Latham and Fraser Barnstaple of Kings Chambers in this week's NLJ. But is it as catastrophic as first feared?
Lord Sales has been appointed to become the Deputy President of the Supreme Court after Lord Hodge retires at the end of the year
Limited liability partnerships (LLPs) are reportedly in the firing line in Chancellor Rachel Reeves upcoming Autumn budget
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