Overview

The High Court has upheld a claim to privilege by RBS in respect of certain documents prepared by external lawyers in the context of LIBOR investigations by regulators in various jurisdictions. Mr Justice Snowden ruled that: (i) factual updates provided to the Executive Steering Committee (ESG), a committee set up to oversee such investigations; and (ii) the minutes of the ESG meetings, were part of the “continuum of communications and meetings between solicitor and client”, provided such communications were confidential and there was a “relevant legal context”. In this case, the relevant legal context was to provide “advice and assistance” in relation to the serious and complex matter of how to deal with and co-ordinate communications and responses to various regulators whose investigations had potentially serious consequences in terms of penalties and private action.

Background

At a disclosure application hearing in May 2015, Mr Justice Birss had expressed some scepticism regarding a claim to privilege over such documents in their entirety, stating for example that:

“Perhaps the document contains legal advice, in which case that legal advice is no doubt privileged, but it does not follow from this that any factual summary in the document is privileged. Perhaps the correct approach is redaction…”

He ordered RBS to submit the relevant ESG documents to the court for inspection to ascertain whether they were protected by legal advice privilege.

Decision

Having considered additional written and oral evidence from both parties and having reviewed the documents, Mr Justice Snowden confirmed that privilege could be asserted over them. He commented on the ESG documents as follows:

• the purpose of the tabular memoranda prepared for the ESG meetings was to provide a comprehensive and up-to-date summary of developments in the various regulatory investigations to form the basis for discussions at those meetings between the ESG and its legal advisers; and
• the summary of the minutes of the ESG meetings included updates from the lawyers in various jurisdictions, and importantly their impressions on such matters, responses to questions concerning the bank’s position and suggestions as to what RBS should do next. Accordingly, these meetings had a “very substantial legal content”.

Based on his review and summary of the relevant case law, Mr Justice Snowden was not inclined to take the restrictive approach suggested by Mr Justice Birss, but took the view that such documents could be privileged, provided that they were part of the “necessary exchange of information of which the object is the giving of legal advice as and when appropriate”. This was the case, even though the tabular memoranda contained many entries which amount to “no more than a brief factual recital of a recent event” and included references to matters in the public domain, such as the launch of an investigation or litigation, or non-public meetings or communications with regulators which were not, of themselves, privileged.

The judge dismissed arguments from PAG that the role of the external lawyers as secretariat of the ESG meetings was partly administrative, on the basis that it was understandable that the law firm should take the lead on deciding how to present the information to the ESG members, in setting agendas, co-ordinating meetings, leading discussions and preparing minutes. He concluded that “they were doing so as an integral part of their provision of legal advice and assistance to the ESG.”

Further, he pointed out that there is a public policy justification for this approach to the scope of legal advice privilege. In addition to the need to encourage clients to make candid disclosure to lawyers of all relevant facts without fear of subsequent disclosure to third parties, lawyers who “are often given the task of investigating” should be able to freely communicate information to clients to enable an informed decision to be made as to what further legal advice to obtain and what to do (and so as to avoid misunderstandings of fact and in relation to the legal advice given and the decisions taken, which might arise if these were not committed to paper). Mr Justice Snowden concluded that:

“There is a clear public interest in regulatory investigations being conducted efficiently and in accordance with the law. That public interest will be advanced if the regulators can deal with experienced lawyers who can accurately advise their clients how to respond and co-operate. Such lawyers must be able to give their client candid factual briefings as well as legal advice, secure in the knowledge that any such communications and any record of their discussions and the decisions taken will not subsequently be disclosed without the client’s consent.”

Comment

This decision provides some reassurance to practitioners when advising their clients in the context of a regulatory investigation, that it is not necessary to distinguish between legal advice and any factual communications, provided the latter forms part of a “continuum”. In addition, the ruling appears to confirm that a committee structure set up for the purposes of overseeing a regulatory investigation and liaising with legal advisers can work as a means of protecting legal advice privilege, provided that it is clear that the role of the lawyers at such committee meetings is both to convey information and provide legal advice in respect of such information to the committee members.

A full copy of the judgment can be found here.