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The threat of restricted legal advice privilege still looms

For years the concerns surrounding the decision in Three Rivers seemed unfounded, but a recent ruling by a Hong Kong court is a reminder that the issue hasn't gone away, warns Julian Copeman

19 March 2012

All disputes lawyers will remember the reaction to the Court of Appeal decision in Three Rivers District Council v Bank of England [2003] EWCA Civ 474 (‘Three Rivers No 5’). It held, without reference to any evidence such as the retainer letter, that for the purpose of assessing legal advice privilege the client was not the Bank of England, but a group of three individuals known as the ‘Bingham Inquiry Unit’ who were responsible for co-ordinating communications with the external lawyers.

Everyone else at the bank was a third party to the lawyer-client relationship, so legal advice privilege did not apply. On this narrow view of the ‘client’, even communications between the lawyers and the governor of the bank (who had appointed the Bingham Inquiry Unit) were not privileged.

Following the Court of Appeal’s decision, there was much debate about whether, and to what extent, client engagements should be agreed differently to avoid the risk that the co...

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