Advice from lawyers on presentation is not privileged!

United Kingdom

Three Rivers District Council & Others –v- The Governor and Company of the Bank of England [2003] EWHC 2565

As the tale of the Three Rivers winds its way through the courts, another surprising decision on the ambit of legal advice privilege was reached on Tuesday of this week. Tomlinson J has found that advice given by the Bank of England's lawyers, as to how material to be submitted to the Bingham Inquiry might be presented, was not protected by legal advice privilege.

The underlying proceedings are brought by the creditors of the Bank of Credit and Commerce International (BCCI) against the Bank for misfeasance in public office over the collapse of BCCI. In March of this year the Court of Appeal held that documents prepared by the Bank's employees for ultimate submission to their lawyers during the course of Lord Bingham's inquiry into BCCI's collapse were not privileged. The court overturned the earlier Judgment of the trial judge, Mr Justice Tomlinson, made in the High Court in December 2002 on the disclosure issue.

On 13 October 2003, Mr Justice Tomlinson found himself in the invidious position of having to interpret the Court of Appeal's decision that had overruled his earlier Judgment. Specifically, whether "presentational assistance" given by the Bank's lawyers in relation to the Bingham Inquiry was protected by legal advice privilege (it was accepted that litigation privilege did not apply because the Bingham Inquiry was a non-adversarial proceeding). Mr Justice Tomlinson found in this recent application that where lawyers give advice on presentational matters (without reference to the Bank's substantive rights and obligations) "which might almost equally have been given by suitably experienced accountants or management consultants", the Court of Appeal's Judgment meant that he had to find that those documents were not privileged. No specific guidance was given on what would comprise this type of advice.

What are the implications of this judgment?

The concept of legal advice must have some boundaries and true legal advice will be privileged. However, advice on matters of presentation is often intertwined with advice on a party's rights and obligations. This decision effectively gives a green light to potential challenges over advice provided by lawyers on the ground that some of it may be of a presentational nature. The Judgment has the potential to impose a substantial burden on parties to distinguish the nature of their lawyer's advice for possible disclosure in proceedings.

The decision is to be appealed and we will keep you updated as to future developments.