Appeal judges call for review of legal advice privilege

The Appeal judges last week called on the government’s law reform body to take another look at legal advice privilege, following on from last year’s Three Rivers litigation.

As reported in LawZone last month, the Appeal judges have been reconsidering the scope of legal advice privilege following Judge Tomlinson’s controversial ruling before Christmas last year where he ruled that communications between solicitor and client on presentational matters, where there was no litigation in the offing, would have to be disclosed if relevant to subsequent litigation. Last week the Appeal judges upheld that ruling.

“We have found this area of law not merely difficult but unsatisfactory,” said Master of the Rolls, Lord Phillips of Worth Matravers. “The justification for litigation privilege is readily understood. Where, however, litigation is not anticipated it is not easy to see why communications with a solicitor should be privileged.”

Lord Phillips went on to argue that legal advice privilege attached to matters “such as the conveyance of real property or the drawing up of a will” where it was unclear why it should. He said: “There would seem little reason to fear that, if privilege were not available in such circumstances, communications between solicitor and client would be inhibited.” He concluded by observing that it had been nearly fifty years since the Law Reform Committee looked at this area. “It is perhaps time for it to receive a further review,” he added.