ADDLESEE V DENTONS EUROPE LLP [2019] EWCA CIV 1600
When a company has been dissolved, what happens to the legal advice privilege attaching to the communications between the company and its lawyers? This issue was considered by the English Court of Appeal in its decision of Addlesee v Dentons Europe LLP [2019] EWCA Civ 1600 (“Addlesee”).
Legal advice privilege attaches at the time the communication is made. Lewison LJ, with whom Flloyd and Hamblen LLJ agreed, held that legal advice privilege attaches to the communications at the time the communication was made, and it remains unless and until the client has consented to its waiver ([29] Addlesee). In addition, privilege does not cease with the death of a living person ([33] Addlesee), and that the existence (or continuing existence) of legal advice privilege is not dependent on it being actually asserted by the client ([41] Addlesee).
Lewison LJ then held that since privilege attaches to a communication at the time it was made, the question before the Court was “not a question of extending the scope of privilege, but of extending the circumstances in which privilege, once attached to a communication, ceases to apply”([51] Addlesee).
Dissolution of a company does not bring an end to the privilege. After referring to various English and Australian authorities, Lewison LJ held that the dissolution of a company does not bring an end to privilege. Lewison LJ further held that the argument that “privilege comes to an end when the client whose privilege it was no longer has a “recognisable interest” in it” should be rejected, as it “undermines the principle that the lawyer must be able to assure his client that the communications covered by legal advice privilege will never be revealed unless he consents” (emphasis in original). Lewison LJ stated that if an exception were to be made for dissolved companies, then the issue of what other exceptions might have to be made would arise, and which would “undermine the policy of certainty that underpins legal advice privilege” ([52] – [58] Addlesee).
Once privileged, always privileged. To summarize, Addlesee can be said to stand for the proposition that once a communication is privileged, it would always be privileged unless the privilege is properly waived.
There are, of course, limited “exceptions”, such as, e.g., fraud (though Addlesee makes clear that at [27] that the exception does not operate by “retrospective stripping away of privilege”; rather, communications for fraudulent purposes never attracted privilege in the first place).
Tags: Legal privilege; Legal advice privilege
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