The Court of Appeal has confirmed that documents protected by legal advice privilege remain so protected even upon the dissolution of the company to whom the privilege belongs. Once attached, legal advice privilege exists unless overridden by statute or waived. In addition, the court found that legal professionals have a duty to assert privilege over their former client’s documents and are entitled to resist disclosure of such documents, even if not instructed to do so: Lee Victor Addlesee v Dentons Europe LLP [2019] EWHC Civ 1600

These proceedings stemmed from a failed investment scheme. The appellant (Addlesee) comprised a large group of investors that invested in a scheme marketed by a Cypriot company called Anabus. Anabus was advised by the respondent (Dentons).

Some time after the investment, Anabus was dissolved. Addlesee subsequently claimed that the scheme was fraudulent and, in May 2016, issued proceedings against Dentons, claiming damages for deceit or negligence on the basis of letters it claimed had induced it to invest.

Addlesee requested disclosure of documents which had passed between Anabus and Dentons. The question on appeal was whether the legal advice privilege originally attaching to these documents subsisted notwithstanding the dissolution of the company.

At first instance, Master Clark ruled that privilege subsisted in these documents, distinguishing the decision in Garvin Trustees Ltd v The Pensions Regulator which held that legal advice privilege did not survive the dissolution of a Northern Irish company.^[1] This distinction was made on the basis that, unlike in Garvin, it was still legally possible for Anabus to be restored to the register.

Addlesee appealed that decision, arguing that legal advice privilege requires the existence of someone entitled to assert it; once a company is dissolved it can no longer do so and so the right ceases to exist. Alternatively, if the dissolution meant that privilege had passed to the Crown as bona vacantia, then the Crown had “disclaimed” it, which also had the effect of lifting the privilege protection.

Legal advice privilege for dissolved companies

The Court of Appeal dismissed Addlesee’s appeal. Legal advice privilege attaches from the moment the relevant communication between client and lawyer is made. It remains in place unless and until it is waived by the client (or someone else entitled to waive it) or overridden by statute.

It was accepted that Master Clark at first instance was bound by Garvin, but the Court of Appeal was not. In Garvin, the Upper Tribunal held that legal advice privilege did not survive the dissolution of a Northern Irish company because it could not assert its privilege and so that privilege ceased to exist.

The Court of Appeal overruled Garvin, holding that the principle applied by the Upper Tribunal was wrong. Upon the dissolution of a company, it is not a question of there being someone to assert privilege, but someone to waive it (and if there is, whether this person has done so). In the instant case, Anabus had not waived their privilege, and upon dissolution the Crown had made it clear that it neither asserted nor waived the company’s privilege. It therefore remained effective.

The court also confirmed that it is a “lawyer’s duty” to assert a client’s privilege – even former clients, now dissolved. As such, Dentons were “doing no more than fulfilling that duty” by resisting the application for disclosure.

The iniquity exception

The Court of Appeal noted in addition that no legal advice privilege attached to documents if they are created for “the furtherance of crime, fraud or other iniquity”. This exception does not, however, conflict with the principle that once privilege subsists in a document, it does so until it is waived. In fact, in such circumstances, the documents are never privileged in the first place – where a client is acting fraudulently or criminally, there is no policy justification to protect his communications with his lawyer.

Comment

This case serves as an important reminder from the Court of Appeal of the fundamental importance and inviolability of legal advice privilege. The court was not prepared to extend the exceptions to the current rule for fear of undermining the absolute principle that a client should be able to consult his lawyer in confidence.

It is clear that once a communication is made between a lawyer and client in connection with giving or receiving legal advice, otherwise than for an iniquitous purpose, legal advice privilege protects that communication unless or until waived by the client or overridden by statute.

The case also provides helpful confirmation to lawyers of their duty to protect the privilege of their clients, even those which have been dissolved or who (in the case of individuals) have died.

^{[1] [2015] Pens LR 1, [2014].}