Legal Advice Privilege- Only for the Select Few

Dispute Resolution Article

06 January, 2017

The High Court in the recent case of The RBS Rights Issue Litigation [2016] EWHC 3161 (Ch) confirmed that the definition of legal advice privilege only extends to correspondence with employees who are authorised by the company concerned to obtain and receive legal advice on the company's behalf.

The doctrine of legal advice privilege has long been a crucial exception to the requirement for disclosure in litigation proceedings and is based on the fundamental principle that communications between lawyers and their clients should not be subject to disclosure. This principle is based on the logic that correspondence between lawyers and their clients should for obvious reasons remain confidential to those parties, otherwise it would undermine the ability of lawyers to properly advise their clients.

The Courts have though traditionally been keen to restrict the scope of communications covered by legal advice privilege as the principle of disclosure is seen as a key part of the litigation process, particularly in light of the requirements contained in the Civil Procedure Rules 1998 for parties to disclosure all relevant information to facilitate the narrowing of issues and aid resolution of disputes etc.

This recent case reaffirms the long standing approach adopted in the Three Rivers District Council and others v Governor and Company of the Bank of England [2004] UKHL 48 that the scope of legal advice privilege is to be construed narrowly. It confirms that communication between former employees or employees not authorised to receive/obtain legal advice, and their lawyers will not be subject to legal advice privilege and therefore may well be disclosable to the opponents in litigation.

The lesson here is that companies need to be very careful when communicating with their lawyers in relation to litigation or issues that may give rise to litigation as if said correspondence falls outside of that which is covered by legal advice privilege, may well be disclosable to the other side with potentially damaging consequences in any litigation. Only those who are authorised to receive and obtain such legal advice should be corresponding with the lawyers and limiting points of contact is recommended. It is also worth establishing with your lawyers from the outset who is authorised to receive or obtain legal advice and provide instructions on behalf of your company, to avoid any of the issues discussed above.

At Forbes Solicitors, the Dispute Resolution team can assist in a wide range of civil disputes and has a vast amount of experience in the area, for more information with regards to our services please visit our Dispute Resolution section of the website. You can also contact us on 0800 689 0831 or send any question through to Forbes Solicitors via our online Contact Form.


26 Oct 2018

Dispute Resolution


Forbes Enhances Dispute Resolution Department with Stephen McArdle Appointment

Forbes Solicitors, one of the North West?s leading legal firms, has added to its successful Dispute Resolution…

Read the article

Forbes Solicitors is commended for its 'deep knowledge'

2018-19 edition Legal 500

More clients

Forbes Solicitors is 'always quick to respond' and delivers 'practical advice' in a way that 'is easy to understand'

2017 edition Legal 500

More clients

The service I received from Robin Stephens was both good value and efficient

Steve Blazye

More clients

I have engaged Forbes on a number of occasions, I have always thought the staff involved were very professional yet practical in their approach.

Ken Haselden
Bensons Vending Limited

More clients

Always give us helpful, solid advice - thoroughly reliable and easy to deal with.

Physiofusion Limited

More clients

Dear Robin Thank you so much for coming to our rescue again!!

More clients

Just a note of thanks for the work you did reference the Framework challenge. The new tender winners have been announced and we are on 6 of the 7 framework lots which is a great result

More clients

We would like very much to offer our thanks and appreciation to Michael Rutter for his negotiations on our behalf.

Derek & Mildred Walmsley

More clients

Thank you for what you have done for us, it has been a pleasure working with you - and your advice is always clear, practical and makes lots of sense.

Evelyn Threlfall

More clients

The letter of summary has helped me to compile my defence. Without it, I would have floundered. I am very pleased with the professional service that I have received from Mohassan and Manisha.

More clients

I have to say that I've never had a better legal service from anyone and am very grateful for your actions in bringing this to a satisfactory conclusion.

Head of Finance at a Local Authority

More clients

Robin and his team have achieved what other legal advisers couldn't! Outstanding debt chased and paid within three weeks! We have used Forbes for years

David Melia
LinkedIn Recommendations

More clients

Legal 500: Robin Stephens is recommended at Forbes

More clients

The service was excellent and I would not hesitate to recommend Forbes to friends, knowing they will be well looked after

Mohammed Dad
H & L Property Limited

More clients

Make an enquiry