When Will Internal Investigations Be Protected By Legal Advice Privilege?

The recent decision in The RBS Rights Issue Litigation, Re, has affirmed the restrictive view of 'the client' espoused in the Court of Appeal's decision in Three Rivers No. 5, and is important reading in particular for those who deal with corporate investigations.

Three Rivers No 5 and the law on legal advice privilege

In 2003, the Court of Appeal ruled on the extent of legal advice privilege ("LAP") in Three Rivers (No 5).  In that case, the Bank of England had created an internal unit to deal with the Bingham Inquiry into the Bank's dealings with the Bank of Credit and Commerce International prior to the latter's collapse. That unit had been established to deal with the inquiry, to gather information from Bank of England employees, and to seek and receive legal advice from external lawyers. The judgment concerned the Bank's claim to LAP in documents created by bank employees and passed to the unit.