A recent Employment Appeal Tribunal decision contains an interesting discussion of some difficult issues relating to legal professional privilege: Moving Brands Ltd v Heinl  EAT 34.
The decision relates to communications between a solicitor (instructed on behalf of an individual client) and a third party, some but not all of which were copied to the client. The decision distinguishes between the two categories, finding that where the client was copied in the communications were “effectively” between solicitor and client and so questions of agency did not need to be considered. Where the client was not copied, the communications could not be covered by legal advice privilege unless the third party was acting as the client’s agent, as legal advice privilege is limited to solicitor-client communications (including via an agent).
The decision raises interesting questions as to what counts as a solicitor-client communication, including the test for agency for these purposes. Despite the decision, it should not be assumed that all communications to which a client is copied will be considered to be solicitor-client communications: no details are given in the present case as to why that conclusion was reached, but presumably the tribunal was satisfied, on the facts, that the substance of the solicitor’s communication in each case was with the client rather than the third party.
Where the client was not copied, the tribunal concluded that legal advice privilege did not apply. The third party in question was not an agent of the client for these purposes as they did not act merely as a “means of communication”.
The whole question of when communications via an agent will be covered by legal advice privilege is a difficult one, made more difficult by the different meanings of the word “agent” as discussed in the case law. As well as where an agent is merely a “means of communication” with no personal input into the communication, it seems clear that legal advice privilege applies to communications between a solicitor and the client’s agent, or representative, where that individual is engaged to seek/obtain legal advice on the client’s behalf. As stated in the classic Court of Appeal decision in Wheeler v Le Marchant (1881) 17 Ch D 675:
“If the representative is a person employed as an agent on the part of the client to obtain the legal advice of the solicitor, of course he stands in exactly the same position as the client as regards protection, and his communications with the solicitor stand in the same position as the communications of his principal with the solicitor. But these persons were not representatives in that sense.”
This is the foundation for the (often criticised) principle that the “client”, for the purposes of legal advice privilege, is limited to those tasked with seeking or obtaining legal advice on behalf of a corporate entity (as per the infamous Three Rivers No 5 decision, as interpreted in SFO v ENRC  EWCA Civ 2006, considered here). In any event, there does not appear to have been any suggestion in the present case that the communications were with an agent or representative in that sense.
The present decision is also of interest in its discussion of the principle that a document can be privileged on the basis that it evidences, or reveals, legal advice sought or given. The decision suggests that the principle can apply where the legal advice in question is to be given in future, as well as where the document evidences advice already given. Continue reading →