Court of Appeal considers the scope of litigation privilege and
who is the "client" for legal advice
The SFO sought disclosure of documents generated during
investigations undertaken by the defendant's solicitors and
accountants in relation to a SFO investigation. It was held that
neither litigation nor legal advice privilege could be claimed in
respect of most of those documents and the defendant appealed. The
Court of Appeal has now upheld that appeal. It held as follows:
(1) Litigation Privilege: The Court of Appeal held that it was
largely a factual issue whether criminal or civil proceedings are
reasonably in contemplation. Here, the judge had erred in finding
that proceedings were not reasonably in prospect. Whilst not every
expression of concern by the SFO could be regarded as adversarial
litigation, here the SFO had made clear the prospect of its
criminal prosecution, and legal advisers were engaged to deal with
that situation. (The judge had commented on
