Practical Law: Privilege following recent Court of Appeal decisions, how important is the status of parties when claiming legal professional privilege?

24-03-2020

Michael Axe a Senior Associate in our Dispute Resolution team had his article featured in the Practical Law Dispute Resolution blog answering the question how important is the status of parties when claiming legal professional privilege?

Legal professional privilege (LPP) is once again in the headlines, following a series of recent high profile decisions. In January 2020, the Court of Appeal in Raiffeisen Bank International AG v Asia Coal Energy Ventures Ltd rejected an attempt to circumvent LPP by a party that alleged LPP had been waived. Then in February, the Court of Appeal in Sports Direct International Plc v Financial Reporting Council rejected an attempt to extend an exception to LPP and reaffirmed that where LPP applies, it can only be overridden in very limited circumstances where there is express statutory authority demonstrating Parliament’s intention to do so. More recently, in March, the High Court in Addlesee v Dentons Europe LLP reaffirmed that fraud is one of the very limited number of exceptions that permit the court to order disclosure of materials that would otherwise have been protected by LPP.

These decisions have made it clear that the protection from disclosure provided by LPP is absolute, and can only be overridden where one of the very limited established exceptions apply.

As these recent decisions reaffirm that the courts do not have judicial discretion to override LPP if it applies, it is therefore vital to understand when LPP will apply (and when it will not). One of the key determinative factors regarding the applicability of LPP is the status of the parties who are sending and receiving the relevant confidential communications.

To read the full article click here.

If you need support and advice on a dispute matter please get in touch with Michael directly by calling 01628 502448 or emailing [email protected]


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