Lords overrule Three Rivers decision

The House of Lords last week turned back the clock in the application of legal advice privilege, as the long-awaited reasoning in the Three Rivers privilege case was handed down.

Freshfields Bruckhaus Deringer and the Bank of England appealed a decision made in March by the Court of Appeal regarding disclosure of communication in relation to the Bingham Inquiry into the BCCI case. The Court of Appeal said that legal privilege would not apply.

The Lords indicated in July that they would overturn the Court of Appeal’s judgment, but reserved reasoning until now.

On Thursday 11 November, they clarified that the law as it was understood prior to the case still applies, adding that legal advice privilege will also apply in inquiries.

Lord Scott of Foscote said: “The skills of professional lawyers when advising a client on what evidence to place before an inquiry and how to present the client and his story to the inquiry in the most favourable light are, in my opinion, unquestionably legal skills being applied in a relevant legal context.”

The Lords did not comment on what counts as a “client” for the purposes of privilege, declining to clarify whether communications between a lawyer and a third party should apply.

A Lovells team led by partner Christopher Grierson represented Three Rivers, with Essex Court Chambers’ Gordon Pollock QC and Fountain Court Chambers’ Bankim Thanki QC. Fresh-fields partner John Goddard instructed Jonathan Sump-tion QC of Brick Court Chambers for the Bank of England.