As its name suggests, the right of legal advice privilege protects confidential communications that pass between a lawyer and their client in the course of giving or receiving legal advice.
In the recent case of Addlesee & Ors v Dentons Europe LLP, a group of investors invested in a scheme marketed by the Cypriot company Anabus Holdings Ltd. Anabus was subsequently dissolved in 2016, at which time the Crown disclaimed all interest in the documents attracting legal advice privilege which had been passed between Anabus and Dentons LLP who represented them. Following the dissolution, the investors claimed that the scheme was fraudulent and issued proceedings against Dentons for deceit or negligence.
At the appeal case, the investors sought to view all documentation attracting legal advice privilege that had passed between Dentons and Anabus. The question for the Court of Appeal was what should happen to legal advice privilege attached to communications between a company and its lawyers once that company has been dissolved.
The investors contended that legal advice privilege is a right for the benefit of an identifiable entity that no third party can claim ownership over. As Anabus had been dissolved, there was no identifiable entity in existence to declare the benefit of privilege, which should therefore now cease to exist.
Dentons asserted that privilege, once attached to a document, will only cease if waived by the individual with the right to waive it, or if the right is overridden by statute.
The Court of Appeal found in favour of Dentons, noting that the inherent characteristic of privileged documents is that they are created for the purpose of giving or receiving legal advice, and that this characteristic endures until it is waived.
Principally, as privilege does not cease on the death of a living person, it should not cease on the metaphorical death of a company.
(By Laura Wallace, Trainee Solicitor and John Tippett-Cooper, Associate)
The question on this appeal is easy to pose, but not so easy to answer. It is: what happens to legal advice privilege attaching to communications between a company and its lawyers, once that company has been dissolved; and the Crown has disclaimed all interest in its former property