Privilege – Some Reflection and 2020 Vision?

Overall, in the common law and civil law worlds, 2019 was a pretty good year for legal professional privilege.

England & Wales

The Court of Appeal once again appeared to try to atone for mistakes of the past (for example, Three Rivers District Council (No. 5) [2003] Q.B. 1556) with a strong endorsement of the rationale for legal advice privilege in Addlesee & Ors v Dentons Europe LLP [2019] EWCA Civ 1600 – legal advice privilege survives death or dissolution (the “PSD” phenomenon). Lawyers take client confidences to their graves, unless the privilege is waived by the client or anyone otherwise lawfully entitled to waive it.

Addlesee comes on the back of the court’s robust judgment in SFO v ENRC Ltd [2019] 1 WLR 791, which helped restore litigation privilege to its more traditional common law roots after much confusion – as was evidenced in certain previous first instance decisions.

Although, towards the end of last year (on 18 November) in BGC Brokers LP & Ors v Tradition (UK) Ltd & Ors [2019] EWCA Civ 1937, the court rejected (among other things) a without prejudice claim, with respect to material incorporated in a settlement agreement, the decision is not surprising on its facts – moreover, throughout 2019, the English courts reaffirmed the fundamental principles that underpin the protection given to without prejudice communications (for example, Re Sternberg Reed Solicitors [2019] EWHC 2065 (Ch); Briggs & Ors v Clay & Ors [2019] EWHC 102 (Ch)).

The number of reported cases (and appeals) involving disputes arising out of different types of privilege is telling. Hopefully, 2020 will be the year in which a well-resourced appellant takes the narrow meaning of “client” in a corporate context (Three Rivers District Council (No. 5)) to the Supreme Court of the United Kingdom.

Professional Bodies

The Union of Internationale de Avocats (UIA) issued a strong public “Collective Statement” on “Professional Privilege” at its 63rd Congress held in Luxembourg (6-9 November, 2019 – attended by three members of the Council of the Law Society of Hong Kong). The statement reads (in part):

“We, the UIA, and the undersigned Bar Associations, …, want to remind all individuals, governments and our fellow lawyers that: 1) Client privilege is a fundamental human right and a lawyer’s obligation to maintain; …”.

The fundamental right extends to all legal persons – individuals or corporates. This is especially important for corporates at a time when regulators are increasingly active and looking to cooperate with each other, both at home and abroad. The hope is that more national and regional bar and lawyer associations will endorse the UIA statement.

Not to be outdone, the Law Society of England & Wales published a useful practice note on legal professional privilege (at the time of writing, dated 13 November, 2019). The general principles of common law privilege are similar in Hong Kong, save that (importantly) local common law adopts a “dominant purpose” test for legal advice privilege and (as befits a fundamental right) disregards a narrow meaning of “client” in a corporate context. Going forwards, the battle to protect legal professional privilege is as likely to be fought in the corporate sphere.

Covert Surveillance by Law Enforcement Agencies in Hong Kong

Media reports in Hong Kong in December, 2019 referred to a “marked increase” in 2018 in the number of “notifications”, in accordance with the Code of Practice (issued pursuant to s. 63 of the Interception of Communications and Surveillance Ordinance), with respect to new cases that may have involved legal professional privilege information (see Commissioner’s Annual Report 2018 – “Summary” and Chapters 4 and 6 of full report).

The Annual Report states that during the report period (1 January to 31 December, 2018) “there was no actual obtainment of LPP information in any of the cases” (Chapter 4.7). The report also states that, with respect to the cases of non-compliance (Chapter 6), there was no evidence of a deliberate disregard for the statutory provisions or the Code of Practice and most incidents of non-compliance by law enforcement agencies were a result of “inadvertence or carelessness” on the part of the officers concerned.

That stated, the marked increase in the number of “notifications” submitted by law enforcement agencies should give lawyers and their clients pause for thought.

The Dark Side and “May The Force Be With You”

Of as much (if not more) concern to legal practitioners (solicitors, barristers and foreign lawyers) should be the threat of computer or phone hacks by rogue agents or cyber criminals – this probably presents the greatest risk to the confidentiality of lawyer and client communications. Private practitioners, in-house counsel and compliance officers should be asking themselves (among other things) when their last IT security audit and control test took place. It is not enough to hope that the “forces of light” may be with you.

 

Jurisdictions: 

Senior Consultant, RPC