Three Rivers District Council v Governor and Company of the Bank of England (No 6)
Legal advice privilege covers advice about the client's rights and liabilities in a relevant legal context, including advice on how to present evidence to an inquiry.
Facts
After the collapse of BCCI, an inquiry was held into the Bank of England's supervision of the bank. The Bank of England set up a unit to deal with the inquiry, which took extensive advice from solicitors and counsel about the presentation of its evidence and submissions to the inquiry. In later proceedings against the Bank of England for misfeasance in public office, the claimants sought disclosure of the communications between the unit and the lawyers. The Court of Appeal held that they were not privileged, because they were concerned with presentation rather than legal rights and obligations.
Legal principle
The House of Lords held that the communications were protected by legal advice privilege. Lord Scott said that legal advice privilege covers communications between lawyer and client for the purpose of giving or obtaining legal advice, and that legal advice is not confined to telling the client the law, but includes advice as to what should prudently and sensibly be done in the relevant legal context. The test is whether the advice relates to the rights, liabilities, obligations or remedies of the client under private or public law. Advice on the presentation of evidence to an inquiry, which might affect the Bank's reputation and legal position, fell within the privilege. An earlier decision in the same litigation had held that only communications with employees authorised to seek and receive advice were protected.
Related cases on privilege and public interest immunity
- Air Canada v Secretary of State for Trade (No 2) [1983] 2 AC 394
- Al Rawi v Security Service [2011] UKSC 34, [2012] 1 AC 531
- Conway v Rimmer [1968] AC 910
- D v National Society for the Prevention of Cruelty to Children [1978] AC 171
- Director of the Serious Fraud Office v Eurasian Natural Resources Corp Ltd [2018] EWCA Civ 2006
- R (Prudential plc) v Special Commissioner of Income Tax [2013] UKSC 1, [2013] 2 AC 185
- R v Derby Magistrates' Court, ex p B [1996] AC 487
- R v H and C [2004] UKHL 3, [2004] 2 AC 134
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