The Court of Appeal cements the enduring status of legal advice privilege and provides guidance on the questions to be asked when determining whether legal advice privilege can be waived.
Legal advice privilege is central to all developed legal systems. Put simply, legal advice privilege means that legal advice given by a lawyer to their client is confidential. The client cannot be compelled to disclose legal advice to third parties, even in the context of legal proceedings in which the advice is highly material, except in extreme circumstances.
In Addlesee and others v Dentons Europe LLP the Court of Appeal held that legal advice privilege endured regardless of the fact that the company entitled to assert privilege over the advice had been dissolved.
The case involved a claimant seeking disclosure of privileged advice given by Dentons Europe LLP to a company that was subsequently dissolved. The material sought by the claimant was relevant to the issues in dispute in the litigation, but Dentons asserted that its legal advice was privileged, notwithstanding the dissolution of the party entitled to assert privilege over that advice.
At first instance, the High Court applied Garvin Trustees Ltd v The Pensions Regulator. In Garvin it was held that if a company with the right to assert privilege over material had been dissolved, and if there was no relevant party remaining and able or willing to assert privilege, the privilege in the relevant documents would lapse. Disagreeing with Garvin, the Court of Appeal made clear that rather than asking who could assert privilege, the correct questions for the court to ask were: who is entitled to waive privilege and, if there remains a party entitled to do so, have they in fact waived privilege. Privilege in documents will only lapse if a party with the ability to waive privilege has done so.
By reaching its conclusion, the Court of Appeal accepted that if no party with the ability to waive privilege remained in existence, the privileged material would remain privileged forever. Stressing the importance of Lord Taylor’s judgment in R. v Derby Magistrates Court Ex p. B, Lewison LJ, who delivered the leading judgment in Addlesee made clear that ‘the client must be sure that what he tells his lawyer in confidence will never be revealed without his consent’.
Privilege does not attach to all legal advice. As Lewison LJ explained in his judgment: “No privilege attaches to documents or communications between client and lawyer, where the purpose of the client was the furtherance of crime, fraud or other iniquity”. With this exception, legal advice will always be held to be confidential and the court will not order disclosure in any circumstances.
The Court of Appeal decision in Addlesee re-emphasises the importance and scope of legal advice privilege. The courts will not permit client to lawyer communications to be abused for nefarious ends but, otherwise, the courts will protect the confidentiality of such communications, even if the beneficiary of the legal advice is no longer capable of asserting privilege.
  EWCA Civ 1600,
  UKUT B8 (TCC)
  A.C. 487