Court of Appeal ruling reasserts fundamental principle of client-lawyer confidentiality

The Law Society has reported that a landmark ruling from the Court of Appeal has helped to ensure that clients, seeking legal advice when they fear prosecution, will have their confidentiality protected.

So important a legal principle is the ‘legal professional privilege’ in a client’s communications with their lawyers that the Law Society intervened in the case – The Serious Fraud Office v Eurasian Natural Resources Corporation Ltd (SFO v ENRC).

Law Society president, Christina Blacklaws, said:

“Maintaining confidentiality and trust between a client and their legal adviser is fundamental to our legal system.”

“As a result of this ruling an individual or organisation facing criminal prosecution can be far more confident that discussions with their solicitors will remain confidential.”

The Law Society intervened in the case to address the matters of principle raised by the original High Court ruling. The High Court had ordered ENRC to disclose to the SFO documents prepared by the company’s lawyers which the company said were covered by legal professional privilege – which guards the confidential communication between clients and their legal advisers.

Christina Blacklaws added:

“Our involvement wasn’t about the underlying case, but about the principles at stake.

“If the High Court ruling had been upheld, any organisation facing a prosecution – not just multinationals, but charities, newspapers, small businesses or local authorities – could have to turn over private communications with their lawyers.

“The rule of law depends on all parties being able to seek confidential legal advice without fear of disclosure. That privilege belongs to the client, not the lawyer.

“We’re delighted the Court of Appeal agreed with our arguments around the practical implications of the High Court judgment.

“Perversely, a lack of privilege in these cases could have made it more difficult to uncover wrongdoing, as organisations might have been less willing to investigate issues to their full extent without the protection offered by legal professional privilege.

“The original ruling also appeared to exclude from the scope of that protection client discussions with lawyers aimed at reaching a settlement. We argued, and the Court of Appeal also accepted, was wrong.”

The Law Society was represented in the case by Dinah Rose QC and David Pievsky of Blackstone Chambers, instructed by Eoin O’Shea of Reed Smith.

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