UK – Legal professional privilege in the spotlight

The English Court of Appeal has started 2020 with two important rulings on legal professional privilege under English law. In this set of two briefing notes, Rory Conway and Stephen Lacey in our Dispute Resolution team take a closer look.

The cases are as follows:

Sports Direct

  • Sports Direct International PLC v the Financial Reporting Council [2020] EWCA Civ 177, in which the Court of Appeal considered whether, when a regulator is investigating A and, pursuant to its powers of investigation, orders B to disclose documents, B can resist production insofar as it is entitled to claim legal professional privilege (assuming the relevant statutory scheme has not otherwise abrogated that right). At first instance, the judge had held not as there was no effective “infringement” of B’s rights. In this important decision the Court of Appeal has now rejected that approach.

Jet2.com

  • CAA v The Queen on the application of Jet2.com [2020] EWCA Civ 35, in which the Court of Appeal analysed the application of legal advice privilege to multi-addressee emails such as the situation where an email has been sent from a client to a lawyer but includes other internal addressees. Its chosen tool? grafting a “dominant purpose” test onto LAP.