Privilege And Statements To A Third Party Regarding Solicitor/Client Instructions

The Court of Appeal held recently that confidentiality and legal advice privilege are not lost in documents containing or evidencing a client's instructions to its solicitor just because the solicitor makes a statement to a third party pursuant to those instructions. Raiffeisen Bank International AG v Asia Coal Energy Ventures Ltd & Anor [2020] EWCA Civ 11 is just one of a number of important recent rulings on privilege and is a welcome judgment for lawyers and their clients.

Background: application for disclosure and assertion of privilege

The case concerned an application by the claimant (the "Bank") for disclosure of documents containing the "irrevocable instructions" – or any variation or change thereto – that a law firm (the "solicitors") had received from their client, a company providing finance for a transaction (the "company"). The solicitors had referred to the "irrevocable instructions" in a written confirmation given by the solicitors to the Bank as