UK: Legal Advice Privilege Clarified by the Commercial Court - but Appeal is Pending

Last Updated: 10 February 2003

A recent Commercial Court decision has confirmed that legal advice privilege is not restricted to communications between a solicitor and client. The privilege extends to protect material brought into existence with the dominant purpose of obtaining legal advice, even if it is not an actual communication between a solicitor and client. For example, working papers and draft documents created with the dominant purpose that their contents be used to obtain legal advice will be protected, provided they are internal confidential material.


This decision of Tomlinson J in Three Rivers District Council and Ors v The Governor and Company of the Bank of England [2002] EWHC 2730 (COMM) was made in the course of ongoing litigation which has followed the collapse of the Bank of Credit and Commerce SA (BCCI) in 1991. After the collapse of BCCI a wide-ranging inquiry was undertaken by Lord Justice Bingham in part to consider whether the action taken by the UK authorities in relation to BCCI had been appropriate and timely. The Bank of England (the "Bank") appointed three Bank officials to deal with all communications between the Bank and the inquiry. They became known as the Bingham Inquiry Unit (BIU).

The claimants, former depositors in BCCI, subsequently issued these proceedings against the Bank. The primary claim is misfeasance in public office by officials of the Bank in their handling of the BCCI crisis. During the course of these proceedings, the Bank asserted legal advice privilege over a large number of documents generated by the BIU. The claimants applied for a declaration that legal advice privilege did not apply to the material generated by the BIU which were not actual communications between a solicitor and client.


Tomlinson J found in favour of the Bank and held that the material was protected by legal advice privilege. In coming to this conclusion, Tomlinson J considered in some detail the particular facts of this case and then examined the relevant authorities.


The BIU’s communications with the inquiry were all the subject of extensive legal advice from solicitors and counsel. According to the Bank, this advice covered every aspect of preparation and presentation of the Bank’s submissions to, evidence for and responses to requests from the inquiry.

The BIU’s role was to obtain, at the request of the legal advisers, all necessary information to enable the legal advisers to advise on the way in which the Bank’s case could be presented to the inquiry. However the location of all relevant information within the Bank and the form of its presentation to the legal advisers was often the subject of considerable internal BIU drafting and communication before its submission to the legal advisers.

Tomlinson J held the BIU was not an agent of the Bank but was the organ of the Bank through which it dealt with the inquiry, including the seeking of advice for the inquiry. Therefore material generated by the BIU was internal material to the Bank and not material generated by a third party.

Relevant law

Legal advice privilege and litigation privilege are the two limbs of legal professional privilege. The rationale behind legal professional privilege is the protection of confidential communications between client and legal adviser in order that the client may "make a clean breast of it" to his adviser (Sir George Jessel MR in Anderson v Bank of British Columbia [1876] 2 Ch D 644 at 649). Litigation privilege extends to protect communications between the legal adviser or client and third parties. However it only arises when litigation is in prospect or pending where the dominant purpose is use in the conduct of, or in aid of the conduct of the litigation. As the Bingham inquiry had no adversarial features of litigation, the Bank accepted that it was not entitled to assert litigation privilege over the material in question. The Bank however asserted that legal advice privilege applied to the material.

Tomlinson J considered the classic and modern authorities in some detail in his judgment. He found that legal advice privilege protected from production "an internal confidential document, not being a communication with a third party, which was produced or brought into existence with the dominant purpose that it or its contents be used to obtain legal advice".

The claimants contended that in order to attract legal advice privilege, the material in question must be actually communicated to the legal adviser. They relied upon two cases in which they asserted that attempts to claim legal advice privilege over documents which were not communications between a lawyer and client had failed. Tomlinson J disagreed with their characterisation of what was being attempted in those cases. He found that the documents in question were actually communications with third parties and therefore not material which could attract legal advice privilege in any event.

Tomlinson J’s view, which he believed to be borne out by the modern authorities, is that the "touchstone" of whether legal advice privilege applies is whether or not the dominant purpose of the material at its creation is the obtaining of legal advice, and not whether or not the material is actually communicated to the legal adviser. He stated that the principle underlying legal advice privilege is to preserve the confidentiality of the process by which legal advice is sought and obtained, rather than the confidentiality of distinct communications within that process.

Dominant purpose

According to Tomlinson J, "the real question" which arose in this case was whether the Bank was correct to characterise the dominant purpose of the BIU as being, broadly, the obtaining of legal advice. He examined the authorities regarding when the "dominant purpose" test applies. While there has been some confusion, he referred to authorities which now assume that it does apply to legal advice privilege, as it does to litigation privilege. In legal advice privilege, the practical emphasis has been said by some judges to be upon the purpose of the retainer of the legal advisers (see Rix J in The Sagheera (1997) 1 Lloyds Rep 160 at p.168). Tomlinson J stated that the relevant test is therefore to enquire whether a document prepared by either solicitor or client fell within the scope of the retainer.

Tomlinson J found that the Bank had established, on somewhat unusual facts, that the material in question was prepared or commissioned pursuant to the retainer between the Bank and the legal advisers, and the object of that retainer was the giving of legal advice.


As Tomlinson J commented, it is surprising that it is still possible to have a sustained argument on so apparently basic a point, but on closer examination, the law in this area was not as clear as might have been expected to be the case. We understand that the claimants are appealing the decision and the appeal is to be heard in March. In the meantime, this decision will be of comfort to those looking to rely on legal advice privilege to protect internal documents prepared in the course of seeking legal advice, but never actually communicated to a legal adviser.

If the Court of Appeal reaches a different conclusion, it will not only be overturning Tomlinson J but it will also conflict with the current interpretation placed on the law by the main commentators in the area (see Passmore, Privilege, 1998 and Hollander and Adam, Documentary Evidence, 2000). We will update you on the Court of Appeal decision in a future article.

© Herbert Smith 2003

The content of this article does not constitute legal advice and should not be relied on as such. Specific advice should be sought about your specific circumstances.

For more information on this or other Herbert Smith publications, please email us.

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.

In association with
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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.