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Legal professional privilege (LPP), which allows a party to withhold documents from disclosure, is a cornerstone of the UK legal system. Upholding LPP enables candid discussions between clients and their lawyers, ensuring informed decision-making and representation.
However, it is open to misuse. That includes consultations with solicitors used in furtherance of criminal purposes (the so-called ‘Crime-Fraud Exception’) as well as less extreme examples, such as bad faith attempts to protect non-privileged materials under the cloak of LPP.
Such attempts have recently made headlines as part of the ongoing investigation into the Post Office’s handling of the Horizon IT scandal.
It has rightly brought about a discussion of the challenges posed by the modern commercial context to the law of privilege, especially regarding electronic communications, in which privilege can be difficult to apply. It is more important than ever to ensure proper practice to meet the criteria for privilege.
The Post Office scandal and LPP
The inquiry into the scandal brought to light legal advice dating back to 2011 regarding potential litigation from four people linked to the Justice For Subpostmasters Alliance. Emily Springford, a lawyer at Royal Mail Group, emailed Angela van den Bogerd, the people services director at Post Office Ltd, to advise that documents would qualify for LPP only if their ‘dominant purpose’ was to give or receive legal advice.
Springford continued to say that if the dominant purpose was not to obtain legal advice, staff should ‘try to structure the document in such a way that its dominant purpose can be said to be evidence gathering for use in the litigation’. Van den Bogerd then sought to summarise this advice to colleagues, instructing them to preserve documents and to ‘mark communications in relation to these cases as legally privileged and confidential’.
As the inquiry counsel pointed out, there was a discrepancy between Springford’s initial guidance and van den Bogerd’s subsequent direction, which indicated that all documents related to the cases should be designated as privileged, whether or not they in fact related to legal advice.
Inquiry counsel Jason Beer KC asked van den Bogerd whether these emails suggested that the Post Office used claims of LPP as a tool to cloak communications in privacy. Van den Bogerd, conceded that the organisation had a ‘tendency to do that’.
This exchange has been widely reported and reflects just one more damaging facet of the scandal.
Avoiding the misuse of LPP
This recent revelation from the inquiry highlights the risks of misusing privilege, deliberately or accidentally, as well as the potential damage that can be caused to the reputation of organisations.
Legal advice privilege remains confusing to apply, even when it is applied in good faith, especially in the context of large organisations where email traffic is constant, particularly in view of the House of Lords decision in the case of Three Rivers (No. 5), which restricted its scope to specific in-house lawyers and their ‘clients’.
For litigation privilege to apply, genuine confidential requests for legal advice from authorised personnel are necessary, and advice given must be within a ‘relevant legal context’. The communication must have litigation as its ‘dominant purpose’. In cases where a communication serves multiple purposes, for example an internal investigation, a court will objectively evaluate its intent, considering all circumstances.
It is important to note that merely copying a lawyer into communications does not automatically confer privilege. Nor does heading an email or letter as ‘privileged and confidential’.
The damaging revelations in the Post Office matter appear to have been the direct result of an attempt to explain legal advice to a lay internal audience. The result has been highly damaging, leading to criticism in the national press, and calling into question the wider application of privilege.
The revelations from the inquiry underscore the need for vigilant adherence to privilege criteria, especially in the evolving landscape of internal electronic communications, to ensure its correct application and preserve trust in both corporate organisations and the legal system.
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