Legal advice privilege comes under scrutiny after 50 years

The law of legal advice privilege faces an overhaul this month as two key cases reach their conclusion.

As lawyers await the House of Lords hearing over communications between the Bank of England and its lawyers Freshfields – part of the BCCI litigation – an equally momentous ruling is about to be delivered by the European Court of Justice (ECJ) in Luxembourg.

The case, Akzo Nobel v the European Commission, is an appeal from an earlier interim ruling by the President of the Court of First Instance, which held that advice from Akzo’s in-house lawyers to the company did attract legal advice privilege.

A victory for Akzo, represented by Stibbe partner Christof Swaak, would mean a possible reversal of 22-year-old case law that states European competition investigators are free to go through the files of lawyers whose company they are investigating.

The documents were seized by the European Commission’s competition authorities, as well as Office of Fair Trading officers, during a raid on Dutch chemical group Akzo’s premises.

The result of the appeal is imminent.

Meanwhile, the House of Lords is due to hear the Three Rivers District Council appeal in a two-day hearing starting next Monday, 26 July. There, the Lords will review Court of Appeal findings that communications between the Bank of England and Freshfields, over the collapse of BCCI, did not attract legal privilege.

In its judgment the Court of Appeal concluded: “Nearly 50 years have passed since the Law Reform Committee looked at this area. It is perhaps time for a further review.”