Secret Identities And Litigation Privilege

Companies and directors should note an important ruling concerning whether instructions by individuals on a company’s behalf to solicitors were ‘privileged’, so did not have to be disclosed. The special commercial lawyers at award-winning firm ParrisWhittaker are experienced in advising companies – including large corporates – in disputes and issues relating to disclosure.

The UK’s High Court¹ recently considered legal privilege – a particularly complex area where several parties are involved.  The ruling has persuasive authority on the courts in the Bahamas.

Legal professional privilege has two ‘branches’ with different characteristics: litigation privilege and legal advice privilege. Legal advice privilege protects communications between client and lawyer made for the sole or dominant purpose of giving legal advice.

What is litigation privilege?

Litigation privilege protects communications between lawyers or their clients – and any third party -which are for the purpose of obtaining advice or information in connection with litigation. That includes existing litigation or litigation that is reasonably contemplated.

However, such communications are privileged only if made for the sole or dominant purpose of conducting that litigation. The burden of proving privilege falls on the party claiming it.

What issue arose in this case?

The broad litigation concerned alleged corporate fraud on the part of Credit Suisse in relation to securities. In this hearing, the court had to decide whether the identity of individuals authorised to instruct solicitors on behalf of a company in ongoing litigation was privileged.

Credit Suisse sought an order that the named individuals authorised to instruct solicitors were not privileged. The claimant (a Jersey-based financing company) resisted on the basis that the information sought was irrelevant and subject to legal professional privilege.

The court set out two requirements to be met for the identity of someone communicating with a lawyer to attract litigation privilege:

• Whether the communication is privileged.
• Whether that privilege will be undermined by the disclosure of identity sought.

Each case requires a decision on its facts; and in this particular case, the court found nothing to suggest that the privilege would be undermined by the disclosure of the individuals’ identity as sought. This meant that the defendant would have to identify the individuals in question.

Key takeaways

The ruling makes clear that the identity of individuals who instruct solicitors on a company’s behalf will not necessarily remain secret – if the disclosure of their identity will not undermine the privileged nature of the communications.

It’s also worth noting that litigation privilege and legal advice privilege can apply to the same communication.

How can we help?

We advise and represent commercial organisations across all sectors in disputes and litigation. For specialist advice from expert commercial litigation lawyers at ParrisWhittaker contact us on +1.242.352.6112 or info@parriswhittaker.com

¹Loreley Financing (Jersey) No. 30 Limited v Credit Suisse Securities (Europe) Limited & Ors [2022] EWCA Civ 1484