Disclosure and privilege: does it help to copy outside counsel into communications?

Written on 29 May 2020

Litigating parties will often be keen to limit the extent of disclosure that they will need to provide during the case. This has proved a fertile ground for disputes in recent years and that trend has continued over the last few months with a spate of case law addressing issues such as when a parent company needs to disclose documents held by its subsidiaries, and whether copying a lawyer into an email helps to protect that email as privileged.

When will a party be held to have 'control' over documents held by a third party?

The rules require a litigating party to disclose documents that are – or have been – in its "control", which includes a right to possession or to inspect or take copies. Prior case law has established that a parent company does not control documents held by its subsidiaries just because of its shareholding. Nevertheless, control will be established where there is an existing arrangement or understanding that in practice gives the parent company a right of access to its subsidiary's documents, or where there is a legally enforceable right to obtain those documents.

The fact that some particular request(s) for assistance by way of the provision of documents have been met in the past without demur does not mean, without more, that there is an "arrangement" in place.

In Pipia v Bgeo Group, it was argued that a parent company had control over certain documents held by its subsidiaries. There had been no general arrangement in place: all that happened was that the subsidiaries may have chosen to assist once or twice in the past. That did not amount to "control".

However, soon after litigation commenced, the parent company obtained the subsidiaries' express consent to provide "all the documents pertaining to [the claim] as requested by us or our advisers". The consent gave control to the parent company over those documents that it specified and requested and which related to the claim (and which the subsidiaries could sensibly and reasonably readily provide).

The parent company could not, though, insist on, for example, the subsidiaries retrieving or restoring deleted files or conducting wide-ranging keyword searches across huge electronic documentary records.

In BES Commercial v Cheshire West and Chester BC, two separate legal entities had a common interest in an investigation. They agreed a protocol that encouraged the exchange of information between them but it was held that this did not amount to a legal right or even a presumption that documents would be provided on request.

Is there any problem with a solicitor telling an opponent that 'my client instructs me to say…'?

Legal advice, including the request for advice, will usually not be disclosable to the other side during litigation because legal advice privilege applies. Privilege can be lost or waived in certain circumstances though. It was recently confirmed by the Court of Appeal in Raiffeisen Bank v Asia Coal Energy Ventures that privilege over the instructions is not waived by solicitors telling the other side that they are instructed by their client to do or say something.

The solicitors had given a written confirmation to a bank that they had received irrevocable instructions from their client to transfer funds. When the funds were not transferred, the bank sought disclosure of documents and further information relating to those instructions. The judge refused to order the disclosure. It was not right to say that the solicitors had been doing no more than a bank or any other third party might have done. The confirmation was instead part of the "continuum of communications in a relevant legal context".

That issue cropped up again in the Jet2 decision referred to below.

Does it help to include a solicitor as one of the recipients to my email?

In Civil Aviation Authority v Jet2.Com, the defendant company claimed legal advice privilege over various drafts of a letter that were emailed to both in-house lawyers and other employees. The Court of Appeal held that although a broad approach should be taken towards "legal advice", meaning that "most communications to and from the client are likely to be sent in a legal context and are likely to be privileged", a particular communication (such as a purely administrative task) "may step outside the usual brief or role" of a solicitor and not qualify for the privilege.

Where an email is sent by the client to multiple addressees (including lawyers and non-lawyers), it should be treated as a separate communication between the sender and each of the recipients (and attachments are also separate communications). Just because a lawyer is a recipient of the email (and even if legal advice is being sought), it does not mean that the same email sent to a non-lawyer will also be privileged if the dominant purpose of sending it to the non-lawyer, for example, was not to obtain instructions or disseminate legal advice.

The same applies to meetings and records of meetings: the mere presence of a lawyer on the off-chance that he or she might give legal advice if required does not make the whole meeting privileged. If the dominant purpose of the meeting is commercial, it will not generally be privileged (although legal advice sought or given at the meeting will be and is severable)

So the drafts and emails sent to the non-lawyers were disclosable where the dominant purpose was not to give or receive legal advice.

The key takeaway from the case is to separate out communications between the client and lawyers (including in-house lawyers) where legal advice is, broadly, being sought or given. Where communications need to take place internally within the business in order to discuss commercial matters, those communications should, so far as possible, be conducted orally. Interposing a lawyer in those communications will not result in them becoming privileged.