In a recent decision, the High Court has held that a claimant could not claim litigation privilege in respect of the identities of the individuals giving instructions to its lawyers on its behalf in relation to the litigation: Loreley Financing (Jersey) No 30 Ltd v Credit Suisse Securities (Europe) Ltd  EWHC 1136 (Comm).
The court found that whether the identity of a person communicating with a lawyer is privileged depends on whether: (i) the communication itself is privileged; and (ii) that privilege will be undermined by the disclosure of the person's identity. That will depend on the facts of each case. In the present case the court found there was no evidence to show that the privilege would be undermined, and therefore the identity information was not protected by privilege.
The decision is of interest as a reminder that (as found in previous cases) the identity or contact details of the individuals instructing a lawyer may be privileged in some circumstances, but it suggests that those circumstances are likely to be rare. The court rejected a broader proposition that, in the context of litigation privilege, the identity of those providing instructions is protected simply because it falls within a "zone of privacy" around the preparation of a party's case.
It is also of some (though perhaps largely academic) interest in finding that lawyer/client communications relating to litigation can be covered by litigation privilege, even if they are also covered by legal advice privilege. This point has been the subject of some debate – though, at least arguably, the orthodox position is that the two sub-heads of privilege do overlap in this way.
The underlying claim concerns the claimant's purchase of notes from the defendants as part of a collateralised debt obligation (CDO) transaction in 2007. The claim raises limitation issues, including what matters the claimant knew or could with reasonable diligence have discovered at particular dates.
The claimant is a special purpose vehicle with no employees, and so a relevant question is whose knowledge can be attributed to the claimant for limitation purposes. In that context, the defendant made a request for further information under CPR Part 18 as to whether certain individuals at a third party company (which was, among other things, a creditor of the claimant company) were providing instructions to the claimant's solicitors in relation to the litigation.
The claimant recognised that this question might have some relevance (in its view minor) in relation to the knowledge/limitation case, but asserted litigation privilege in the information sought.
As is well established, litigation privilege applies to communications that were prepared for the dominant purpose of litigation that was in contemplation at the time in question.
The High Court (Mr Justice Robin Knowles CBE) held that the names of the individuals authorised to instruct the claimant's solicitors were not protected by privilege.
The judge held that two requirements must be met before the identity of a person communicating with a lawyer is privileged. First, the communication itself must be privileged. Second, that privilege must be undermined by the disclosure of the individual's identity.
He referred to a number of cases in which privilege was held not to apply to the client's identity, as well as two cases (SRJ v Persons Unknown  EWHC 2293 (QB) and BTA Bank v Ablyazov  EWHC 1252 (Comm)) in which privilege was held to apply to a client's identity or contact information.
The claimant argued that the cases referred to were specific to legal advice privilege, rather than litigation privilege, and that different policy considerations apply in the latter case. That raised the prior question as to whether litigation privilege can apply to communications between lawyer and client, even though legal advice privilege also applies. That proposition was challenged by the defendant, but the judge rejected the challenge, finding that (as stated in Colin Passmore's textbook, "Privilege") there is nothing inherently wrong with an approach that recognises that the same communications can be protected by both sub-heads of privilege.
Having established that litigation privilege potentially applied to the lawyer/client communications in question, the defendant argued that the identity of those instructing the lawyers engaged the rationale for litigation privilege, namely that "each party should be free to prepare his case as fully as possible without the risk that his opponent will be able to recover the material generated by his preparations" (as stated in Three Rivers (No 6)  UKHL 48 per Lord Rodger). In other words, their identity fell within a "zone of privacy" around a party's preparation of its case, which includes for example the identity of proposed witnesses. The defendant argued that, if such information were not privileged, a client might have reservations before authorising a particular individual to provide instructions on its behalf, since their identity might give "clues" as to the content of the instructions or the client's litigation strategy.
The judge said he was "respectfully cautious" about the term "zone of privacy", which may have some value as a description of the general position but is not itself the test. Each case will require a decision on its facts. In some cases, disclosure of the identity of those giving instructions might trespass into the question of the content of those instructions. But in the present case, the claimant had given no evidence that revealing this information would give clues as to the content of particular instructions.
There was also no suggestion in the present case that the identity of the relevant persons was only available from privileged communications.
The Court of Appeal has granted permission to appeal in this case.
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