Law Lords protect legal advice privilege

The issue of legal privilege was in the spotlight again last week as the House of Lords overturned a Court of Appeal decision to make public documents connected to the BCCI case.

The House of Lords overturned the appeal last Thursday (29 July), ending uncertainty over the meaning of legal advice privilege. The reasoned judgment of Lords Brown, Carswell, Rodger, Scott and Lady Hale is expected in the autumn.

In a March judgment, the Court of Appeal upheld its decision on an appeal from Mr Justice Tomlinson from February 2003. It ruled that certain communications between the Bank of England and its solicitor Freshfields Bruckhaus Deringer concerning the collapse of BCCI were not protected by legal advice privilege. Three Rivers, a creditor of BCCI, was therefore within its rights to request disclosure of those documents.

The Law Society, advised by Linklaters’ commercial litigation partner Diana Good and head of property litigation Katie Bradford with Brick Court’s Sir Sydney Kentridge QC, were permitted to intervene in last week’s hearing. The society said that restricting legal advice privilege threatens the traditional right of a client to communicate with their lawyer in confidence.

A Lovells team led by partner Christopher Grierson represented Three Rivers, with Essex Court Chambers’ Gordon Pollock QC. Freshfields partner John Goddard instructed Jonathan Sumption QC of Brick Court Chambers for the Bank of England.