What a privilege - UK developments



The United Kingdom (UK) Court of Appeal has handed down a decision which is undoubtedly the most important recent ruling on the issue of legal privilege, in particular legal privilege relating to documents gathered and created for purposes of carrying out internal investigations in contemplation of litigation. The decision may be important from a South African perspective as our courts may, when faced with a similar question, look to UK jurisprudence for guidance in this regard. We set out the basics of the decision below.

The Court of Appeal has overruled the decision of the High Court of Justice, Queen's Bench Division which ultimately ruled on the main purpose of legal professional privilege and legal advice privilege, the former requiring a true contemplation of litigation and the latter not.

The Court of Appeal determined that documents are likely to be protected by legal professional privilege if the documents were created in reasonable contemplation of litigation and for the dominant purpose of resisting or avoiding prosecution (for example, attorney work products). The over-ruled High Court decision held that 'there had to be a real likelihood and not a mere possibility of litigation,' before any documents could be protected.

With regards to legal advice privilege, although it was not open to the Court of Appeal to pronounce on this issue, the court interpreted the leading case on legal advice privilege, Three Rivers (No. 5), to mean that legal advice privilege can only apply to communications between an employee of a corporation and the corporations legal advisers if the employee was tasked with seeking and receiving such advice on its behalf. It therefore appears that the Court of Appeal would have followed a similar approach to that of the High Court. This determination will rest with the Supreme Court if this decision is appealed.

An important point made by the Court of Appeal in respect of former employees is that former employees fall within the same category as third parties and therefore documents obtained from such persons are not covered by legal advice privilege.​​