Guernsey: Does Legal Advice Privilege Always Extend To The "Client"?

Last Updated: 21 February 2017
Article by Mathew Newman and Michael Rogers

The protection of legal advice provided by a lawyer to their client is critical for a number of obvious reasons.  Usually the advice given will fall within the domain of legal advice privilege.  However, this form of privilege is not automatic, and is dependent upon the substance of the communication and who, in reality, constitutes the client.

Understandably, there is often confusion about the various forms of privilege which may, or more importantly, may not, attach to certain documents.  Of particular importance to corporate entities is the position in respect of notes prepared by a lawyer from a consultation or interview with employees of the client.  The English High Court recently grappled with the issue in The RBS Rights Issue Litigation1, applying a narrow interpretation to "client".  Though not binding on the Royal Court of Guernsey, English decisions can be persuasive.  Mathew Newman, Head of Guernsey's dispute resolution team, examines the judgment2.


RBS (the "Bank") authorised their employees to participate in interviews with the Bank's legal advisors.  The employees were informed that the notes (the "Interview Notes") taken by the legal advisors would be kept confidential and subject to "attorney- client" privilege.

In response to the application for the disclosure of the Interview Notes, lawyers acting on behalf of the Bank claimed legal advice privilege and "lawyers' working papers privilege" in respect of the transcripts, notes and records of interviews that had been held with employees of the Bank, but no claim was advanced regarding litigation privilege.

The purpose of the Interview Notes was not to create transcripts of the interviews held with the employees but rather to assist in providing legal advice to the ultimate client, the Bank. It was noted that the Interview Notes were not verbatim recitals of the interviews, but evidence of the "mental impressions" of the respective lawyers conducting the interviews with a view to advising the Bank.

The main thrust of the Bank's argument in relation to legal advice privilege was that the Interview Notes reflected a communication between an individual authorised by the Bank to provide instructions to its lawyers and as such those communications should be privileged.  The Bank did not assert that the Interview Notes were a communication between the Bank and its lawyers in which advice was sought or given or that the Interview Notes were the product of legal advice.  The Bank submitted that any communication between an authorised employee and their lawyer is privileged and that it is not a part of the test of privilege that the communication should consist of instructions rather than information.

In summary, the opposing submission was that legal advice privilege does not cover the communication of factual information between an employee of the client and a legal adviser.  It only covers communication between a client and a lawyer for the purposes of seeking or receiving legal advice.  Therefore, the mere gathering of information by a person who is not the client, is not protected by privilege, despite being authorised and instructed to do so at the request of the employer/ client.


The Court rejected the claim to privilege over the Interview Notes on all grounds that were advanced and followed the (much criticised) decision of Three Rivers No 5 [2003] EWCA Civ 474; that in a corporate context, information gathered from an employee is no different from information obtained from a third party.  That is, despite the information which was collected enabling the lawyers to advise the corporate entity.

The Court held that "the communication must be to or from a person who on behalf of the corporation is authorised to seek and receive legal advice, and the communication must be for the purposes or in the course of that person giving or receiving legal advice".  This communication was to be distinguished from preparatory work which amounted to the compiling of information which was conducted by persons who do not have authority to seek or receive legal advice.

The Court accepted that the Interview Notes were a record of direct communications from the employees to the Bank's legal advisors and that as a consequence, the Interview Notes enabled the Bank to seek and receive legal advice.  However the Court followed Three Rivers (No 5) were it was held that "information from an employee stands in the same position as information from an independent agent".  More importantly, the employees that were interviewed were only providers of information and as the employee was not the client, it followed that the Interview Notes were not communications between a client and a legal adviser.


The important point to take away from this decision is that only communications with an individual capable, in law, of seeking and receiving legal advice as a duly authorised organ of a corporate entity will be afforded the protection of legal advice privilege.  Accordingly, corporate entities should take legal advice before employees are due to communicate with their lawyers to ensure that the corporate entity is protected as far as possible.  We understand that this judgment may be appealed and it will be important to follow this developing area of jurisprudence.


1 [2016] EWHC 3161 (Ch)

2 At this point, it is useful to reflect on the differences between legal advice privilege and litigation privilege.  Broadly speaking, litigation privilege protects the assembly and content of evidence for the purpose of litigation and thus focuses on the purposes for which the documentation has been obtained/assembled.  Legal advice privilege applies only to the confidential communication between a party and his legal advisers for the purpose of enabling that party to obtain informed and professional legal advice, and is confined to confidential communications within that relationship for the purpose of its fulfilment (Anderson v Bank of British Columbia (1876) 2 Ch D 644)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions