England and Wales High Court (Commercial Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
COMMERCIAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		13 December 2002

Mr Justice Tomlinson

1. The Claimants' application upon which I must rule has raised an interesting

and fundamental point concerning the scope of legal professional privilege.

2. It has become an accepted classification to regard legal professional privilege as capable of being divided into two distinct classes; legal advice privilege, which protects the confidentiality of communication between solicitor and client for the purpose of obtaining legal advice, irrespective of whether the advice concerns pending or contemplated litigation; and litigation privilege, which protects the confidentiality not just of communication between solicitor and client but also of communication between solicitor or client and a third party. However in order to attract privilege under the latter head it must be shown that, in respect of any document for which privilege is claimed, the dominant purpose for which that document was brought into existence was, at its creation, its use in the conduct or in aid of the conduct of pending or contemplated litigation.
3. The question which has arisen on this application is whether the subject matter of legal advice privilege is restricted to communications between solicitor and client, including secondary evidence of such communications or whether it embraces also material brought into existence for the dominant purpose of obtaining legal advice, even though that material is not in itself a communication between solicitor and client. The Claimants contend for a narrow ambit restricted to communications properly so called, and assert that decisions of high authority support them. The Defendant contends for a wider ambit, protecting documents or information the dominant purpose of the creation or compilation of which was the seeking of legal advice, and it equally asserts that decisions of high authority support its approach.
4. In one sense it is surprising that it is possible in 2002 to have a sustained argument on so apparently basic a point. However I am bound to say, if only in self defence since I entertained the argument, that on closer examination the law in this area is not perhaps as clear as one might have expected it would by now have become. It may be an area of the law in which the use of hallowed language can sometimes obscure rather than illuminate the underlying principle. I have deliberately described legal advice privilege above in terms of the confidentiality of communication, singular, rather than communications, plural, because I would suggest that it is the confidentiality of the process of communication which is preserved, rather than simply the confidentiality of distinct communications within that process. In practice in many if not most cases legal advice privilege is only claimed and probably only claimable in respect of documents and information passing directly between solicitor and client and in such cases it is natural to speak in terms of communications between them. However I believe that it is possible that this understandable use of language in the paradigm case may serve to obscure the wider principle which is at work which is, I would suggest, the preservation of the confidentiality of the process pursuant to which legal advice is sought and obtained. Once that wider principle is borne in mind, assuming I have correctly identified it, it becomes clear that actual communication of the relevant document or information - and I prefer the broader description 'material' - is not in fact the touchstone.
5. It is in my view axiomatic that it ought to be possible to say of any material at its creation whether or not it is privileged from disclosure. Its status ought not to depend upon the use subsequently made of it, or the fortuity whether it is used in the manner intended or even whether the opportunity for such use has arisen before an application for its disclosure has been made. In fact considerations such as these led to Mr Mildon QC for the Claimants conceding in reply that in cases where the process of communication could be said to have begun but to have been for whatever purpose interrupted or frustrated then privilege could be said to attach. What was objectionable he suggested was the attempt to extend the privilege back into the information which constitutes the antecedents of or the acts preparatory to the creation of a communication.
6. Subject to the point that in legal advice privilege one is concerned only with confidential material generated by the client or by the solicitor, because it is the ability of the one to seek and the other to give legal advice in confidence which is at stake, not their ability to seek out information from third parties on matters not already known to them, I believe that the line is drawn by the law not by reference to the question whether a communication is choate or inchoate but rather by the court posing to itself the question proposed by Jacobs J of the High Court of Australia in Grant v Downs 1976 CLR 674 at p.692;

" Does the purpose of supplying the material to the legal adviser account for the existence of the material?"

In order to explain why I have come to this conclusion I must first set out as briefly as possible but I fear necessarily at some length the context in which the debate has arisen and then examine the authorities to which I was referred.

7. I do not need to set out again either the history of this action or its subject matter. Both are set out in the speeches of the House of Lords delivered on the two occasions on which this action has already been before them – see 2000 2 WLR 1220 and 2001 2 ALL ER 513. Furthermore in my own judgment of 31 May 2002 [2002] EWHC 1118 (Comm) I set out in some detail the circumstances and manner in which there was set up following the collapse of BCCI on 5 July 1991 the Bingham Inquiry. My earlier judgment should so far as necessary be regarded as incorporated in this judgment. See also the decision of the Court of Appeal on appeal therefrom – 2002 4 ALL ER 881. As I explained in my judgment the Bingham Inquiry was a private non-statutory inquiry. I also discussed in some detail the nature of the Inquiry which was obviously very wide-ranging. The purpose of the Inquiry was in part to consider whether the action taken by all the UK authorities in relation to BCCI had been appropriate and timely. It was clear that the Inquiry would require the assistance of the Bank. Anything that the Bank did and said in relation to the Inquiry was potentially of great legal sensitivity. It was an inquiry one outcome of which could be criticism of the conduct of the Bank from an informed and highly authoritative source, an outcome which would not only be of some importance in relation to the Bank's ongoing regulatory and supervisory role but would itself be likely either to lead to or to encourage the institution or attempted institution of proceedings against the Bank by depositors and others who had lost money in consequence of the collapse of BCCI.
8. In such circumstances it is unsurprising that the Bank took steps to coordinate its response to the Inquiry. Shortly after the Inquiry was established three Bank officials, Mr Paul Tucker, Mr John Trundle and Mr John Rippon were appointed by the Governor to deal with all communications between the Bank and the Inquiry. They became known as the Bank's Bingham Inquiry Unit or "BIU." They met with the Bank's solicitors Messrs Freshfields and with Counsel on the day that they were appointed. Except for some purely routine administrative arrangements the BIU's communications with the Inquiry, all of which were conducted entirely at arm's length, were all the subject of extensive legal advice from Freshfields and Counsel. The modus operandi of the BIU is described comprehensively in Freshfields' Third Letter to the Claimants' solicitors Messrs Lovells dated 19 July 2002, the relevant parts of which were checked with Messrs Tucker, Trundle and Rippon and the accuracy of which has also been confirmed by the relevant solicitor at Freshfields with contemporary responsibility, Mr Croall, now a partner. In order to render this judgment comprehensible I cannot avoid setting out here the relevant passages from Freshfields' letter: -

"Messrs Tucker, Trundle and Rippon (the Bank's Bingham Inquiry Unit or "BIU") were appointed by the Governor to deal with all communications between the Bank and the Inquiry and met with Freshfields and Counsel on the day they were appointed. Except for some purely administrative communications with the Inquiry (such as arrangements for the provision for documents or timetabling of witness testimony which we regard as irrelevant for the purposes of disclosure), the BIU's communications with the Inquiry were from the outset all the subject of extensive legal advice from the Bank's legal advisers (Freshfields and Counsel).

This advice covered every aspect of the preparation and presentation of the Bank's evidence and submissions to the Inquiry, the preparation of its witnesses (who were represented by Counsel at the Inquiry), the preparation of letters relating to witness testimony, the preparation of the Maxwellisation letters, the consideration of the effect of other matters on which the Bank was taking legal advice (such as evidence given by the Bank to the TCSC) on the presentation of the Bank's submissions to the Inquiry and finally the Bank's consideration and response to the Report. The preparation of all submissions and evidence to the Inquiry went through a process, co-ordinated by the BIU and the Bank's legal advisers (both solicitors and counsel), whose purpose was to obtain, at the request of the legal advisers, all necessary information to enable the legal advisers to advise on the way in which the Bank's case could be presented to the Inquiry.

This process involved contact between the BIU and the legal advisers virtually every day by telephone, letter or fax and in meetings. Preparatory work was carried out by the BIU, including contact with Bank or Ex-Bank staff involved in licensing or supervising BCCI. The location of evidence and factual material from within the Bank was carried out by the BIU, or others within the Bank at the request of the BIU, or the Bank's legal advisers. Those carrying out that work were commissioned to do so either specifically in relation to particular tasks or generally by the Bank's legal advisers. The sole purpose of carrying out this work was to provide information to the Bank's legal advisers to enable them to prepare submissions and/or advise on the nature, presentation, timing and/or content of the Bank's submissions to, evidence for and responses to requests from, the Inquiry.

Contact between BIU and the Bank's legal advisers was virtually constant, with members of the team of legal advisers often working at the Bank as the most efficient means of directing and reviewing the output of the BIU. The BIU and the Bank's legal advisers effectively operated as a single team, with members of the BIU undertaking, or delegating to others within the Bank, tasks of research or fact-gathering for the purposes of review and/or advice by the Bank's legal advisers. The location of all relevant information within the Bank and the form of its presentation to the legal advisers was often the subject of considerable internal BIU drafting and communication before its submissions to legal advisers. However, at all times the legal advisers saw in practice a wider range of BIU-generated papers than is indicated by the lists of recipients on them and all such internal BIU documents, whether explicitly addressed to the legal advisers or not, were prepared as part of a continuous process of producing drafts and information required by the legal advisers to enable them to give advice to the Bank on the form of its submissions, evidence and responses to the Inquiry.

The drafts of the written submissions to the Inquiry were considered extensively by the legal advisers in order to advise the Bank on them in a serious of meetings and discussions with the BIU during the course of which there would be further extensive communications by, to or within the BIU and with the Bank's legal advisers for the purpose of the production, by the BIU or one of the Bank's legal advisers, of redrafts to be further considered by the team of legal advisers. Ultimately, a final version of the Bank's written submissions to the Inquiry would be produced, on which no more advice was sought from the legal advisers, and which was submitted to the Inquiry. As you know, we regard these final versions as disclosable (subject only to any PII claim by the Treasury Solicitor).

Whilst this process was ongoing, and subsequently, the BIU was fully involved in the preparation of notes and briefings and information-gathering and document-production for the purpose of seeking legal advice on how Bank witnesses might best be assisted in preparing for their appearance in front of the Inquiry and thereafter for the purpose of seeking legal advice on the preparation of the letters sent by the witnesses to the Inquiry commenting upon their transcripts. The Bank's team of legal advisers were again closely involved in the process. Although communications were often written by the BIU to the witnesses (or vice versa) or within the BIU without always being explicitly addressed to the lawyers, every communication was made as part of the continuing process of ensuring that the legal advisers were as fully informed as possible about the witnesses' evidence, and could advise and assist (and represent) them at the Inquiry, and subsequently in relation to their letters to the Inquiry.

Thereafter the Bank's legal advisers remained fully involved with the BIU, in a similar manner and for the same purposes as described above, in relation to, for example, the Bank's Lessons paper of April 1992, the subsequent oral submissions to the Inquiry, the Maxwellisation process and the Bank's response to the report.

In short, the preparation and presentation of the Bank's submissions and evidence to the Bingham Inquiry, including internal bank drafts and communications whether explicitly addressed to the Bank's legal advisors or not, were from its outset to its conclusion, part of a continuous exercise to which legal advice privilege attached.

The fact that the Bingham Inquiry exercise was a privileged exercise does not mean that every single document generated within or received by the Bank from its outset to its conclusion is necessarily privileged. This exercise has included obtaining advice from Counsel. If any relevant document is not privileged we have, subject to the rechecking referred to earlier and any PII considerations, disclosed it.

We trust that we have satisfactorily explained this part of the Bank's claim for privilege. In doing so, we should make plain that the privilege does not simply attach to the small number of mistakenly disclosed documents mentioned above. It applies to the very considerable number of undisclosed documents generated for the purposes described above, many of which are also likely to be privileged on one of the grounds mentioned in the third paragraph of this letter.

9. For completeness I set out also two passages from Mr. Croall's second Witness Statement: -

"18. The manpower of the BIU was increased at various points (by the addition of extra bank officials, in particular of Messrs Bland and Wilson) to enable the BIU to carry out speedily and efficiently the various research and analysis tasks that were required to furnish information and accurate instructions to the Bank's legal advisers. The preparation and communication of information and instructions to the bank's legal advisers to enable them to advise pursuant to their retainer was the central role performed by the BIU. Indeed, I am informed by Messrs Trundle and Rippon that all communications passing information and instructions from the BIU to the Bank's legal advisers were communications that took place pursuant to the retainer…………………………………………………………………..22. In considering, however, the scope of the retainer of the Bank's legal advisers it is important to understand that the Bank's preparation for the Bingham Inquiry was analogous to the steps that would be taken to deal with the preparation of evidence and submissions for the purposes of litigation. Information and instructions flowed continuously from the Bank to its legal advisers through the BIU and advice and assistance flowed continuously in the opposite direction."

10. A claim to privilege is thus asserted by the Bank in respect of a very considerable number of documents generated for the purpose of providing information to the Bank's legal advisers to enable them to prepare submissions and/or to advise on the nature, presentation, timing and/or content of the Bank's submissions to, evidence for and responses to requests from the Inquiry. It is obvious why the Claimants would wish to see this material. Their enthusiasm was heightened by an internal memorandum in the shape of a note to the Governor, accepted not to be privileged, descriptive of a paper prepared for the Bingham Inquiry concerning the arrangements for the giving of legal guidance to the Banking Supervision Division and related matters. The note to the Governor remarked that as Mr Jackson, Secretary to the Bingham Inquiry, was ex-Freshfields and had himself once been involved in giving to the Bank advice on legal issues " there was not much scope for gilding the lily." However whilst a note of that sort is a forensic gift-horse upon which comment is, and was, irresistible, it is important to put the matter in perspective. The Claimants' application that privilege be disallowed relates exclusively to documents in the Bank's files which came into existence after the closure of BCCI on 5 July 1991. As I understand it the Bank has waived privilege in relation to all documents coming into existence prior to closure, subject to a small number of exceptions each of which has been separately identified. Thus whilst the Claimants are able to point out that the materials brought together by the BIU are the products of the initial evidence-gathering exercise by the BIU immediately after the collapse of BCCI when the recent supervision of BCCI was still fresh in everyone's minds, it should be borne in mind that any document generated pre-closure has already been disclosed. Thus the material of which disclosure is now sought can properly be described, I hope not pejoratively, as commentary. It must be obvious that the probative value of such material will be dependent upon the identity of the commentator, and there must be question marks over the relevance and admissibility of much of the material. Nonetheless I can see that there would or might be some documents which would be highly relevant, such as perhaps the first draft statement of a person who had been intimately involved in the supervision of BCCI. Material of that sort might be just what Lord Wilberforce had in mind when he spoke in Waugh v. British Railways Board 1980 AC 521 at p.531 in the context of an accident on the railways of a report that was contemporary and which contained statements of witnesses on the spot which would not merely be relevant but almost certainly be the best evidence as to the cause of the accident. So I shall proceed, as must in any event provide the acid test, upon the assumption that the material which the Bank seeks to protect from disclosure is both relevant to and probative as to the issues in the trial.
11. Against that background the documents in issue can probably be sub-divided, as they were by Mr.Croall, into three classes.
12. First there are documents sent to the Bank's legal advisers where it was the intention at the time at which they were prepared that they should be so sent. This category concerns documents which can be seen on their face to have been intended by their author or by the person who commissioned them to go to the Bank's legal advisers and which did, in fact, go to the Bank's legal advisers. Of these documents Mr.Croall says:-

" I believe that all documents, which upon review by a qualified solicitor are seen to have been written or commissioned with the express intention of sending them to the Bank's legal advisers and which did in fact go to the Bank's legal advisers, were prepared or commissioned for the dominant purpose of obtaining or recording legal advice or were otherwise prepared or commissioned pursuant to the retainer between the Bank and its legal advisers, and that they are therefore privileged."

13. Secondly there are BIU or other Bank documents which were not sent to the Bank's legal advisers. These documents are only regarded by the Bank as privileged if upon review or investigation it becomes clear that they were prepared for the dominant purpose of obtaining or recording legal advice and for that reason fall within the scope of the retainer. Of these documents Mr.Croall says: -

" In order to assess whether a document was prepared for such purpose, a qualified solicitor is reviewing all such documents (including headings, addressees and contents) to see whether they reveal that the dominant purpose for which the document was prepared was to obtain or record legal advice having regard to the work carried out by the BIU… If the purpose for which it was prepared remains in doubt after such reviews, we will then consult the author of the document (or, where identifiable, the person or persons who commissioned the document) to see whether the dominant purpose for which it was written was to obtain or record legal advice. Only if those Inquires indicate that this was the dominant purpose for which it was prepared will it be withheld on grounds of privilege. …. An example of such a document which would be regarded as privileged would be a note commissioned by the BIU from an official within the Bank in order to prepare from that note and from similar notes commissioned from other people within the Bank a verbal or written analysis or summary of the information for passing to the Bank's legal advisers pursuant to the retainer. Whether the analysis or summary note was itself commissioned by the Bank's legal advisers on the one hand or produced at the initiative of the BIU in order to inform and instruct the Bank's legal advisers on the other is in my submission immaterial. In either case the underlying notes obtained by the BIU from the various Bank officials would have been commissioned (and thus have been prepared) for the dominant purpose of providing instructions and information to the Bank's legal advisers pursuant to the retainer in order to obtain legal advice or assistance from them."

14. The third category consists of documents sent to the Bank's legal advisers where that intention was not evident on the face of the document at the time it was prepared. Of these documents Mr.Croall says: -

"This category concerns documents which were produced within the bank (either by the BIU or by others within the Bank) and were then sent to the Bank's legal advisers but where there is nothing on the face of the document to show that was the intention of the person who prepared or commissioned the document at the time he or she prepared or commissioned it. These documents are only regarded by the bank as privileged if upon review and/or investigation it becomes clear that they were prepared or commissioned for the dominant purpose of obtaining or recording legal advice or were otherwise prepared or commissioned pursuant to the retainer. …. In order to assess whether such document was prepared for such a dominant purpose or pursuant to the retainer, again a qualified solicitor is reviewing all such documents (including headings, addressees and contents) to see whether they reveal that at the time the document was prepared it was prepared or commissioned for the dominant purpose of obtaining or recording legal advice or otherwise pursuant to the retainer having regard to the work carried out by the BIU. … If this remains in doubt after such a review, we will then consult the author of the document (or, where identifiable, the person or persons who commissioned the document) to see whether at the time it was prepared or commissioned for the dominant purpose of obtaining or recording legal advice or otherwise pursuant to the retainer. Only if those Inquiries indicate it was, will it be withheld on grounds of privilege.

An example of such a document would be a note written by one bank official to another which is subsequently copied to the BIU by whom it is then sent on to the Bank's legal advisers. In such a case any privileged manuscript annotation placed upon the document by the member of BIU at the time he sent it to the Bank's legal advisers (e.g. raising an issue with the Bank's legal advisors for their consideration) would be redacted and the document in redacted form would be disclosable unless enquiries of the author of the document (or of the person or persons who commissioned it) reveal that the document was itself prepared or commissioned for the dominant purpose of obtaining or recording legal advice or otherwise pursuant to the retainer."

15. The Bingham Inquiry had none of the adversarial features of litigation. Notwithstanding the obvious possibility which existed from the moment that the Bingham Inquiry was set up that litigation might in due course be instituted against the Bank arising out of the collapse of BCCI the Bank does not assert that it is entitled in respect of this material to invoke litigation privilege. It takes its stand on legal advice privilege. In that regard the Claimants have invited me to be wary of approaching the application with the mind set which one applies to litigation privilege. It is suggested that therein lies a recipe for confusion.
16. I am mindful of the warning but legal advice privilege and litigation privilege are but two facets of the same principle, legal professional privilege-see per Lord Nicholls of Birkenhead in In re L (A Minor) 1997 AC 16 at p. 33. It is true that litigation privilege extends to communications between the solicitor or client and third parties, for reasons bound up with the adversarial nature of litigation. The Bank does not contend that it is entitled to assert privilege in respect of any such communications. The relevance of the analogy sought to be drawn between the Bingham Inquiry and legal proceedings is that it is illuminative of the scope of Freshfields' retainer by the Bank. The nature of the exercise undertaken by the BIU under the guidance and with the assistance and advice of Freshfields is precisely analogous to that which would be undertaken by a team similarly constituted in order to deal with the conduct of major litigation against the Bank.
17. The rationale behind legal professional privilege was stated succinctly, albeit in the context of litigation privilege, by Sir George Jessel MR in Anderson v. Bank of British Columbia 1876 Ch D 644 at 649:-

"The object and the meaning of the rule is this: that as, by reason of the complexity and difficulty of our law, litigation can only be properly conducted by professional men, it is absolutely necessary that a man, in order to prosecute his rights or to defend himself from any improper claim, should have recourse to the assistance of professional lawyers, and it being so absolutely necessary, it is equally necessary, to use a vulgar phrase, that he should be able to make a clean breast of it to the gentleman whom he consults with a view to the prosecution of his claim, or the substantiating of his defence against the claim of others; that he should be able to place unrestricted and unbounded confidence in the professional agent, and that the communications he so makes to him should be kept secret, unless with his consent (for it is his privilege, and not the privilege of the confidential agent) that he should be enabled properly to conduct his litigation. That is the meaning of the rule."

Wheeler v. Le Marchant (1881) 17 Ch D 675 was a case in which Sir George Jessel had occasion to draw a distinction between legal advice privilege and litigation privilege. Of the former he said, at p. 682:-

" It is a rule established and maintained solely for the purpose of enabling a man to obtain legal advice with safety."

In Ventouris v. Mountain 1991 1 WLR 607 Bingham LJ essayed his own explanation as follows:-

" The doctrine of legal professional privilege is rooted in the public interest, which requires that hopeless and exaggerated claims and unsound and spurious defences be so far as possible discouraged, and civil disputes as far as possible settled without resort to judicial decision. To this end it is necessary that actual and potential litigants, be they claimants or respondents, should be free to unburden themselves without reserve to their legal advisers, and their legal advisers to be free to give honest and candid advice on a sound factual basis, without fear that these communications may be relied on by an opposing party if the dispute comes before the court for decision. It is the protection of confidential communications between client and legal adviser which lies at the heart of legal professional privilege, as is clear from the classical exposition of the law by Sir George Jessel M.R. in Anderson v Bank of British Columbia (1876) 2 Ch D 644, 648-649. Without the consent of the client, and in the absence of iniquity or dispute between client and solicitor, no inquiry may be made into or disclosure made of any instructions which the client gave the solicitor or any advice the solicitor gave the client, whether in writing or orally."

18. Wheeler v. Le Marchant decides that in order to enable a man to obtain legal advice with safety it is not necessary to extend the protection to communications between the solicitor or client and a third party, because the exercise of obtaining information from a third party is not part and parcel of a client making a clean breast of all he knows to his lawyer. It is the ascertainment of information not known to the client, which by definition therefore is not confidential to the client. As Cotton LJ put it in Wheeler v. Le Marchant at p.685, " It is not necessary, in order to enable persons freely to communicate with their solicitors and obtain their legal advice, that any privilege be extended to communications such as these."
19. However the adversarial nature of English litigation has given rise to a development of or extension to the doctrine, protecting from disclosure material, including communications with third parties, generated for the dominant purpose of use in the conduct or aid in the conduct of actual or anticipated litigation. The rationale for this development or extension is stated by Lindley LJ in In re Strachan (1895) 1 Ch 439 at p. 445 in terms which are not entirely easy to reconcile with the philosophy underlying modern trial procedures:-

" In England it is considered contrary to the interest of justice to compel a litigant to disclose to his opponent before trial the evidence to be adduced against him …… . It is considered that so to do would give undue advantages for cross-examination and lead to endless side-issues; and would enable witnesses to be tampered with, and give unfair advantage to the unscrupulous.

It is very true that an honest and fair-dealing litigant, on seeing how strong a case his opponent had, might at once withdraw from further litigation. But our rules of evidence and of discovery are not based upon the theory that it is advantageous to let each side know what the other can prove, but rather the reverse."

Modern thinking has led to the procedural erosion of that approach, but the basic principle remains sound, encapsulated in the celebrated passage from the judgment of James LJ in Anderson v. Bank of British Columbia at p. 656, as being "that as you have no right to see your adversary's brief, you have no right to see that which comes into existence merely as the materials for the brief."

20. The question which has arisen in this case is whether in order to attract protection from disclosure confidential material produced for the purpose of making a clean breast to a legal adviser must actually be communicated to him. I have already indicated that in my judgment actual communication is not the touchstone for the attraction of privilege. The touchstone is in my view the dominant purpose which accounts for the creation of the confidential material. I believe that this approach is borne out by the modern authorities, and that there is there nothing in the authorities which militates against it. I also believe that this approach has the express approval of the House of Lords, although as I have already indicated the position is not as clear-cut as one might have expected it by now to have become.
21. The Claimants rely upon two cases in which, they assert, attempts have been made to extend the scope of legal advice privilege to documents prepared for the purpose of obtaining legal advice as distinct from the communications between lawyer and client in which that advice was elicited or given, on both of which occasions, as they rightly point out, the claim to privilege failed. However the Claimants in my judgment mischaracterise what was being attempted in those cases. In Re Highgrade Traders Ltd (1984) BCLC 151 the court was concerned with reports commissioned by an insurance company from loss adjusters, fire experts and chartered accountants in relation to the circumstances surrounding a fire at commercial premises which it insured. Although the reports were held to be protected by litigation privilege, the court had to deal with a prior argument to the effect that, " It is sufficient to support a claim for privilege [sc.legal advice privilege] merely to show that the documents were prepared at the behest of the insurers for the purpose of obtaining legal advice to be given to them by their solicitors." Unsurprisingly the court rejected this argument in relation to these third party reports. The insurers were seeking information and advice from third parties. This was not part of the confidential process of the insurers preparing to unburden themselves of their own knowledge to their legal advisers. In my judgment the case tells one nothing about material created by the client himself with a view to seeking legal advice.

The second case relied upon by the Claimants is Price Waterhouse v. BCCI Holdings (Luxembourg) SA (1992) BCLC 583. Price Waterhouse (PW) performed several different functions for BCCI, including coordinating the worldwide audits of the companies in the group, reviewing the consolidation of their accounts, preparing reports for the College of Banking Supervisors, and from October 1990 acting as a member of a committee of investigation set up by BCCI's controlling shareholders and later, on 6 February 1991, reconstituted to investigate problem loans made by BCCI. Under the terms of reference of the committee PW was required to report to BCCI's solicitors to enable them to give legal advice to BCCI. BCCI asserted legal advice privilege in respect of documents prepared by PW in the course of its investigations as a member of the committee, not in both of its two different guises, but rather on or after 6 February 1991 i.e. the date on which it was reconstituted as a committee appointed by BCCI rather than by the controlling shareholders. The submission was that the committee had thereby become an internal committee of BCCI and that PW, or the committee, was the means of communication between BCCI, the client, and Allen & Overy, the legal advisers. After citation of a passage from the judgment of Oliver LJ in Re Highgrade Traders Ltd Millett J said this:-

" Price Waterhouse (or the investigating committee) was not merely the appointed channel of communication. It was not merely an agent for communicating material from BCCI to Allen & Overy; it was charged with the duty of bringing the material into existence. In so far as it reported to Allen & Overy (if indeed it did), it was not passing on a communication from BCCI; it was producing material for BCCI and, at BCCI's direction, forwarding it to Allen & Overy direct instead of to BCCI with a view of its being sent on to Allen & Overy. In my judgment its position was not essentially different from that of the surveyors in Wheeler v Le Marchant (1881) 17 Ch D 675 or the loss-adjusters and other experts in Re Highgrade Traders Ltd. I should add that the investigating committee did not become an internal organ of BCCI, though in my view it would not matter if it did. The report in question in Waugh v British Railways Board (1979) 2 All ER 1169, (1980) AC 521 was prepared by employees of the board, inter alia, for transmission to the board's legal advisers for the purpose of obtaining legal advice; yet the present head of privilege was neither invoked nor referred to in the speeches of any of their Lordships."

It is thus clear that Millett J rejected on the facts the attempt to suggest that PW had become other than a third party producing material for BCCI. He likened PW to the surveyors in Wheeler v. Le Marchant or the loss adjusters, fire experts and accountants in Re Highgrade Traders Ltd. It is true that Millett J went on to say that it would in his view have made no difference if the investigating committee had become an internal organ of BCCI and he then referred to Waugh. That part of Millett J's judgment was unnecessary to his decision. It is obviously correct to say that legal advice privilege was not invoked in Waugh, but it is in my judgment and with all respect to Millett J open to question whether it was referred to in the speeches. There was citation, with approval, from judgments in the High Court of Australia in Grant v. Downs (1976) 135 CLR 674 which themselves arguably dealt with legal advice privilege. The reason why legal advice privilege was not invoked in Waugh is, in my judgment, likely to have been because it would have added nothing to the reliance on litigation privilege. Just as the Board could not show that the dominant purpose for which the report was produced was for use in the conduct or in aid of the conduct of actual or anticipated litigation, so also the Board would not have been able to show that the dominant purpose for which it was produced was transmission to their legal advisers for the purpose of obtaining legal advice. One reading of what their Lordships intended to declare is that the dominant purpose test applies equally to both limbs of legal professional privilege.

22. In the light of what Millett J in the Price Waterhouse case went on to say at p. 590, to the effect that the dominant purpose of the investigation was to establish the facts necessary to enable BCCI's financial position to be determined, it seems likely that legal advice privilege must in any event have been unavailable in that case. Indeed Millett J regarded the terms of reference of the investigating committee, including as they did reference to reporting to BCCI's legal advisers to enable them to give legal advice to BCCI, as "manifestly contrived for the specific purpose of attracting legal professional privilege" – see at p. 591. In my judgment the real question which arises on the present application is the question whether the Bank is correct to characterise the dominant purpose of the work of the BIU as being, broadly, the obtaining of legal advice from Freshfields. In that regard there is a helpful discussion by Millett J at p. 590-591 of the Price Waterhouse case of the extent to which purposes may be inseparable or independent, as the case may be. His discussion is in fact in the context of litigation privilege but the enquiry in the context of legal advice privilege must in my judgment be the same.
23. In Grant v. Downs a patient admitted to a psychiatric institution was left on his own overnight in a single room. On the night of his admission he escaped through a window and died of broncho-pneumonia in the hospital grounds. His widow sued the nominal defendant, representing the Government of New South Wales, under the Compensation to Relatives Act, alleging, broadly, negligence in his care whereby he had been allowed to escape and die from exposure. The defendant disclosed the existence of certain reports to the Department of Public Health relating to the death but objected to produce them on grounds of legal professional privilege. An affidavit deposed to the purposes for which the reports had been prepared as follows:-

" One purpose for the preparation of the reports was to assist in determining whether there had been any breaches of discipline by staff and, if so, what action should follow. A further purpose was to detect whether there were any faults in the security and general running of the institution concerned so as to prevent, so far as possible, death or injury of patients. The remaining purpose was to have a contemporaneous detailed report, including commentary, which could be submitted to the legal representatives of the Department of Public Health for the purpose of enabling them to advise the said Department respecting its legal position and, in the case of death of a patient to represent the said Department at inquests and in any civil proceedings relating to death or injury of a patient to act on behalf of the said Department. With respect to civil proceedings it was considered at these conferences that patients injured in unusual circumstances, and also relatives of patients who died in unusual circumstances, might commence civil proceedings seeking compensation for the injury or death and that therefore it was important that these reports be prepared so as to be available for the legal representatives of the Department should such proceedings result."

It could in the light of that evidence be said that the case was concerned, or concerned principally, with litigation privilege, although advice in relation to representation of the department at an inquest would not of course attract that head of legal professional privilege. Sir Garfield Barwick CJ began his judgment by saying that the case involved a consideration of the "appropriate terms of a statement of the principle to be applied in Australia in deciding whether a document is excluded from inspection by reason of " professional privilege" "- see at p. 676. That might be thought to be of general application to legal professional privilege, although a little later on the same page of his judgment Sir Garfield said that " the matter for our decision is the content of a statement of relevant principle appropriate to the conduct of litigation in this country." There is a resonance here with the manner in which the matter was put by Sir George Jessel in Anderson v. Bank of British Columbia.

24. There is a number of passages in the judgments in the High Court of Australia from which it might appear clear that what was under consideration was the doctrine of legal professional privilege in both of its two principal manifestations, legal advice privilege and litigation privilege. The only difference between the majority and Barwick CJ was whether the test adopted should be one of sole purpose, as the majority thought, or dominant purpose, as Sir Garfield Barwick thought. Sir Garfield Barwick expressed his conclusion thus, at p. 677:-

" Having considered the decisions, the writings and the various aspects of the public interest which claim attention, I have come to the conclusion that the Court should state the relevant principle as follows: a document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect, should be privileged and excluded from inspection."

On its natural reading this passage would seem to be concerned both with the obtaining of legal advice and with the conduct of litigation reasonably in prospect. It is possible that Sir Garfield had in mind only the obtaining of advice in relation to litigation in reasonable prospect, as opposed to the obtaining of legal advice which was not similarly focussed, but I can see no rational basis on which the principles which protect the confidentiality of the process of obtaining legal advice should differ as between these two distinct situations, although the exigencies of litigation, actual or contemplated, require the net to be cast wider than it is in relation to the obtaining of legal advice simpliciter, so as to enable a party to carry out confidential preparations for trial. In this regard I have some difficulty with the following passage in Millett J's judgment in the Price Waterhouse case at p.590 where he said:-

" The obtaining of legal advice is not an end in itself. To attract privilege it must be for the purpose of actual or contemplated proceedings."

I think in its context this must be taken as allied to Millett J's earlier observation that documents brought into existence in the course of the investigation did not attract legal professional privilege merely because legal advice might be necessary in order fully to evaluate the fundamental implications of the facts. In other words Millett J was concerned with dominant purpose. He cannot surely have intended to call into question the existence of the distinct head of legal advice privilege which is no way dependent upon litigation in existence or in reasonable prospect, except perhaps in the most general sense in which it might, somewhat implausibly, be said that litigation is always in prospect whenever a man seeks legal advice in relation to his affairs. That however is surely not the rationale of the rule. The law protects the confidentiality of the process of obtaining legal advice without requiring it to be demonstrated that litigation is reasonably in prospect in relation to the matters on which advice is sought. In R v. Derby Magistrates' Court, ex p. B 1996 1 AC 487 at p.505 Lord Taylor of Gosforth CJ said :-

" In Greenough v. Gaskell 1833 1 M&K 98 the question was whether the privilege was confined to cases where legal proceedings were already in contemplation. Lord Brougham LC held it was not."

In Grant v Downs there are some similarly puzzling observations in the joint judgment of Stephen, Mason and Murphy JJ which seem to suggest that legal advice privilege is only available where litigation is contemplated. I think that the explanation for this must be that the relevant observations are made in the course of a passage in fact dealing with litigation privilege, and that their makers have in mind the obtaining of advice in relation to that litigation, rather than assistance with its conduct.

25. At pp 682-3 Stephen, Mason and Murphy JJ seem to pose the question under discussion in a manner which is, on the face of it, of the same generality as the formulation of Sir Garfield Barwick:-

" What then are the relevant principles of law governing the privilege which attaches to communications and materials, submitted by a client to his solicitor for the purpose of advice or for the purpose of use in existing or anticipated litigation, in particular when the materials have been called into existence to serve more than one purpose, submission to the solicitor being only one of the purposes? It is a question more easily asked than answered, despite all that is to be found in the decided cases and all that has been said in the learned articles.

The judgment of Havers J. in Seabrook v. British Transport Commission (8) contained a comprehensive review of the decided cases, illustrating as it does by reference to earlier judgments, that the essential elements of this head of privilege (which embraces communications and investigations made by the client as well as communications and work undertaken by the legal adviser, whether for use in litigation or for advice) have been differently expressed from time to time.

………………………………………………..

However the fact that the document is brought into existence in anticipation of litigation is not sufficient, without more, to attract privilege; the document must be called into being for use in litigation or for advice and it is the extent to which this purpose is intended to be served by the preparation of the document that is in question."

The natural reading of these passages is surely that the three judges had in mind both litigation privilege and the privilege which attaches to legal advice unrelated to litigation.

At p. 686-7 of the joint judgment is a passage highly relevant to the present application which highlights the difficulty in drawing the line as to purpose, whether sole or dominant, where a corporation has conducted a fact finding exercise in order to inform itself of relevant facts. Finally at p. 688 the three judges delivering the joint judgment said:-

" All that we have said so far indicates that unless the law confines legal professional privilege to those documents which are brought into existence for the sole purpose of submission to legal advisers for advice or for use in legal proceedings the privilege will travel beyond the underlying rationale to which it is intended to give expression and will confer an advantage and immunity on a corporation which is not enjoyed by the ordinary individual. It is not right that the privilege can attach to documents which, quite apart from the purpose of submission to a solicitor, would have been brought into existence for other purposes in any event, and then without attracting any attendant privilege. It is true that the requirement that documents be brought into existence in anticipation of litigation diminishes to some extent the risk that documents brought into existence for non-privileged purposes will attract the privilege but it certainly does not eliminate that risk. For this and the reasons which we have expressed earlier we consider that the sole purpose test should now be adopted as the criterion of legal professional privilege."

Here again, the latter part of the passage would seem to narrow the apparent

ambit of the earlier part. At all events, in relation to documents generated by the client himself, there can surely be no logical or defensible reason for treating differently documents produced for the sole purpose of obtaining legal advice in a non-litigious context, and documents produced for the sole purpose of obtaining legal advice in respect of anticipated litigation. The concern being dealt with at this point in the majority judgment is in fact the need to ensure that a corporation cannot ex post facto deem the purpose of a fact finding exercise to be the obtaining of legal advice if that was not the sole, or indeed the dominant, purpose at the time the exercise was instituted. That is of course precisely what Millett J was concerned to avoid in the Price Waterhouse case.

26. In Waugh v. British Railways Board 1980 AC 521 The House of Lords expressly approved the approach of the High Court of Australia, although they adopted the dominant purpose rather than the sole purpose test. The critical and apparently general passage in the judgment of Sir Garfield Barwick to which I have drawn attention was set out and approved - see per Lord Wilberforce at pp. 532-3, Lord Simon at p. 534 and 537 and Lord Edmund-Davies at pp. 543-544. I do not regard it as plausible to suggest that their Lordships did not appreciate that the test which they were approving was stated in terms which apparently embraced legal professional privilege in both of its principal manifestations, legal advice privilege and litigation privilege. It would I think be surprising if their Lordships uncritically adopted a passage of such apparent generality if they thought that a different approach was called for in relation to legal advice privilege to which the passage apparently, or at any rate on one obvious reading, made reference.
27. I respectfully agree with Rix J in thinking that Slade LJ in giving the leading judgment in Guinness Peat Properties Ltd. v. Fitzroy Robinson Partnership 1987 1 WLR 1027 understood the House of Lords to have adopted the dominant purpose best as applicable to both limbs of legal professional privilege.

The point arose in The Sagheera (1997) 1 Lloyds Rep 160. At p.167 Rix J said:-

" There is no clear decision on whether the "dominant purpose" test applies to legal advice as well as litigation privilege. Waugh v.British Railways Board was a decision on litigation privilege. Mr Kenny referred me to Style & Hollander, Documentary Evidence, 5^th ed., 1995, at p. 170 where it is stated that the dominant purpose test applies just as much to legal advice privilege as it does to litigation privilege, citing Guinness Peat Properties. That case, however, was also concerned with litigation privilege. What can be said is that at pp.1034F-1035A Lord Justice Oliver [sic - plainly an intended reference to Lord Justice Slade] there repeated the test propounded by Chief Justice Barwick in Grant v. Downs 1976 135 CLR 674 at p.677 which had itself been adopted in the House of Lords in Waugh, viz:-

"With the dominant purpose… of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation…" [bold emphasis added]

in terms which suggest that the test applies to both limbs of legal professional privilege."

After discussion of Balabel v. Air India (1988) Ch 317, to which I next turn, Rix J concluded, at p.168:-

" It would appear from this citation of authority that the dominant purpose test does apply to legal advice privilege, but for practical purposes in a different way from the manner of its application to litigation privilege. In the latter, the focus is always very much upon the purpose for which a particular document was prepared, and that is readily understandable in the context of documents not passing directly between solicitors and their clients. In legal advice privilege, I would suggest, the practical emphasis is upon the purpose of the retainer. If the dominant purpose of the retainer is the obtaining and giving of legal advice, then, although it is in theory possible that individual documents may fall outside that purpose, in practice it is unlikely. If, however, the dominant purpose of the retainer is some business purpose, then the documents will not be privileged, unless exceptionally even in that context advice is requested or given, in which case the relevant documents are probably privileged.

In the present case the retainer is said to be for the purpose of investigating and advising on the casualty. In my judgment that meets the dominant purpose test, for the purpose of investigation is inseparable from the purpose of advice: cf. Re Highgrade Traders Ltd. at p. 173g-h cited above. It follows that it is highly unlikely that any document within this retainer, a fortiori in the context of anticipated litigation, will be both relevant and outside the broad scope of the privilege appertaining to such communications. It seems to me that the plaintiffs are entitled to privilege for all documents within this category."

I would respectfully suggest that it is clear from that passage, particularly in the light of the judge's citation of a passage from the judgment of Taylor LJ in Balabel to which I will shortly refer, that although Rix J had in mind that legal advice privilege would most usually be concerned with documents passing directly between solicitor and client, typically communications, nonetheless he recognised that the relevant test was to enquire whether a document prepared by either solicitor or client fell within the scope of the retainer. Furthermore the passage which I have cited is highly relevant to a consideration of the nature of the retainer in the present case. Before turning to that point I must first set out one or two relevant passages from the judgment of Taylor LJ in Balabel.

28. That case was unarguably not concerned with litigation privilege but with legal advice privilege. It is not entirely clear whether the Court of Appeal had to consider all three categories of documents which were considered at first instance, although they did have to consider category two which was drafts, working papers, attendance notes and memoranda of the defendant's solicitors related to the proposed new underlease. At p.330 Taylor LJ said:-

" Although originally confined to advice regarding litigation, the privilege was extended to non-litigious business. Nevertheless, despite that extension, the purpose and scope of the privilege is still to enable legal advice to be sought and given in confidence. In my judgment, therefore, the test is whether the communication or other document was made confidentially for the purposes of legal advice. Those purposes have to be construed broadly."

I would particularly draw attention to the words " or other document." Finally, at p.332 Taylor LJ said:-

" As indicated, whether such documents are privileged or not must depend on whether they are part of that necessary exchange of information of which the object is the giving of legal advice as and when appropriate."

29. Mr Stadlen QC for the Bank also drew to my attention the decision of the Queen's Bench Division and of the Court of Appeal in Southwark and Vauxhall Water Co. v. Quick (1878) 3 QBD 315. It is right to say that there are observations in that early case, as there are in the later cases to which I have already referred, which tend to suggest that the discussion of the privilege attaching to the obtaining of legal advice was focused particularly on the obtaining of advice on the question at issue in an actual or contemplated action. It is therefore a moot point whether the judgments in Southwark v. Quick were intended to be of application to legal professional privilege as a whole. I find of most assistance for present purposes the following passage, in the judgment of Cotton LJ in the Court of Appeal at pp. 322-323 where he said:-

" That, I think, is the true principle, that if a document comes into existence for the purpose of being communicated to the solicitor with the object of obtaining his advice, or of enabling him either to prosecute or defend an action, then it is privileged, because it is something done for the purpose of serving as a communication between the client and the solicitor….

I think that in substance the transcript is also stated to have been prepared for the purpose of being laid before the solicitor. The fact that it was not laid before him can in my opinion make no difference; the object of the rule and the principle of the rule is that a person should not be in any way fettered in communicating with his solicitor, and that must necessarily involve that he is not to be fettered in preparing documents to be communicated to his solicitor."

30. It is as a result of this long, perhaps over-long examination of the authorities that I have come to the view that emphasis upon communications as such tends to obscure the true nature of the protection from production. If the principle is that a person should not be in any way fettered in communicating with his solicitor, and must not be fettered in preparing documents to be communicated to his solicitor, it must be axiomatic that it is the confidentiality of the whole process of communication which requires protection, not just those documents which can be recognised as comprising the actual or final communication. This becomes particularly obvious when one considers the case of a corporation which can only act through individuals, perhaps needing to act through many. It would to my mind be wholly artificial, and not in any way consonant with the rationale underlying the principle, to confine protection to documents which are actually intended to be handed to the legal adviser or to serve as an aide-memoire whilst imparting information to him and seeking his advice thereon. If the protection were so confined it would lead, I think, to somewhat arbitrary and capricious distinctions. In modern conditions it would be unduly restrictive of the ability of a corporation to prepare in confidence for consultation with its legal adviser. Of course, there needs to be a control mechanism which prevents privilege attaching to documents which would have been brought into existence for other purposes in any event or to those which are brought into existence for a dual or multiple purpose. The necessary control mechanism is supplied by the dominant purpose test, which must be applied at the time of creation. In my judgment an internal confidential document, not being a communication with a third party, which was produced or brought into existence with the dominant purpose that it or its contents be used to obtain legal advice is privileged from production. The purpose must be that of the author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence.
31. I am fortified to find that my conclusion coincides with that of the authors of two textbooks. Thus in Passmore, Privilege, 1998 the law is stated as follows, at pp.37-38:-

" In order to establish a successful claim to advice privilege, the following essential elements must be present:

A communication, whether written or oral;

Made confidentially;

Between a client and his lawyer, acting in a professional capacity;

Made for the (dominant) purpose of enabling the client to seek or the lawyer to give legal advice or assistance.

These principles extend so as to protect other confidential communications made for the purpose of seeking or giving legal advice, namely:

Lawyer-to –lawyer communications made on the behalf or the same client;

Communications between a client and lawyer made on their respective behalves by agents;

Communications between a client and lawyer in which related commercial advice or assistance is sought or given; and

Certain types of confidential documents which, strictly, are not communications but which are created by the lawyer or client and come into existence either to enable the legal (or related commercial) advice or assistance to be sought or given, or as a consequence of such legal advice or assistance having been sought or given, or to enable such legal advice or assistance to be carried into effect.

As should be apparent, what advice privilege does not protect is communications between a lawyer, or his client, and a third party."

Similarly, in Hollander and Adam, Documentary Evidence, 7^th Edition at p.126 there appears under the heading "Legal advice privilege" the following passage:-

" Legal professional privilege is a manifestation of the principle protecting confidentiality.

………..

The privilege covers direct communications and communications through agents. It covers all documents generated for the purpose of giving or getting legal advice, not merely letters to and from solicitors and instructions to and opinions from counsel, but also working papers and drafts. The privilege exists whether or not litigation is contemplated or pending."

32. This brings me to what is to my mind the real question on this application. Should the dominant purpose for which the documents here in dispute were prepared be regarded as the obtaining of legal advice or should it rather be regarded as the provision of assistance to the Bingham Inquiry? It is here that it is necessary to examine the nature of Freshfields' retainer, and here that I find helpful the powerful if incomplete analogy with the conduct of legal proceedings. It is entirely natural and appropriate that the Bank should have wished to be guided by Freshfields at every turn in its dealings with the Bingham Inquiry. It is true that had it not been for the Bingham Inquiry the Bank would have had no need to prepare and collate the material, at any rate not in the same way, and that the bulk of the material would simply never have come into existence. But had there been no Bingham Inquiry, the Bank would have had no need to seek legal advice on the nature and form of its response thereto. There is nothing artificial about the concept of seeking legal advice on this scale in relation to an inquiry of this nature. This is not a case where the width of Freshfields' retainer could be said to be, as Millett J said of the investigating committee's terms of reference in the Price Waterhouse case, "manifestly contrived for the specific purpose of attracting legal professional privilege." The Bank accepts that all documents generated prior to closure are disclosable and it accepts that all documents in the shape of final statements, submissions etc. actually submitted to the Bingham Inquiry are likewise disclosable. In my judgment the Bank has properly identified as the dominant purpose for which much of the material was brought into existence by the BIU the obtaining or recording of legal advice. More broadly, the Bank has established that the material was prepared or commissioned pursuant to the retainer between the Bank and the legal advisers as part of the necessary exchange of information of which the object was the giving of legal advice. I say much of the material because it is recognised that not all of the material was produced with that dominant purpose. It is not a matter for criticism of the Bank or indicative of the impracticability of the adoption of such an approach that the Bank has on occasion had to revise its evaluation of a document. Rather in my judgment is that indicative that, as appears from the evidence, the Bank has where necessary made scrupulous and conscientious enquiries in order to ascertain what the dominant purpose of the creation of any given document was.
33. I have not lost sight of the fact that the form of presentation of information to legal advisers was often the subject of considerable internal BIU drafting and communication before its submission to the legal advisers. There was therefore, as Mr Mildon put it, intellectual input on the part of the BIU. I would agree with Mr Mildon that if one were concerned simply with communications between solicitor and client conducted through an agent, then the addition of intellectual input by the agent might well in the usual straightforward case in which legal advice privilege is asserted destroy the existence of that privilege, as breaking the chain of communication. There is no need to protect the confidentiality of the agent's independent input, since this is unnecessary to enable the principal safely to unburden himself to his legal advisers of what he knows. But the present is not a case in which the BIU is properly to be characterised as an agent of the Bank. The BIU was the organ of the Bank through which it dealt with the Bingham Inquiry, including the seeking of advice in relation thereto. The BIU was for this purpose the Bank. The work done by the BIU was, in most respects, part of a continuous process of producing drafts or information required by the legal advisers to enable them to give advice to the Bank on the form of its submissions, evidence and responses to the Inquiry.
34. I am bound to say that I do not regard my decision as breaking any new ground. It seems to me likely that privilege has routinely been claimed and probably never challenged in relation to precisely similar or analogous exercises conducted in relation to statutory inquiries and other non-adversarial proceedings. No doubt those involved may not have stopped to enquire whether the privilege they were invoking or not challenging was legal advice privilege or litigation privilege. In a case of this sort where the relevant dominant purpose can be made out and where privilege is not claimed in relation to communications with third parties it is unsurprising that the result thrown up by application of the test for legal advice privilege should be the same as that thrown up by application of the test for litigation privilege, even though the latter is in fact unavailable, since both are simply facets of the single principle of legal professional privilege. Nor do I consider that my decision opens up any flood-gates permitting the widespread assertion of privilege where hitherto it was unavailable. It is only on somewhat unusual facts and in the light of exceptionally cogent evidence that the dominant purpose test has in this case been satisfied in relation to a very considerable number of documents. If rigorously applied the test is a difficult one to satisfy, as the cases demonstrate. What may be surprising is the large number of documents in respect of which the Bank has been able successfully to assert privilege. In the ordinary run of litigation it will surely be rare for a party to succeed in making good a claim to privilege to an extent comparable to the claim here asserted by the Bank.
35. In the result I have concluded that the Claimants are not entitled to the declaratory relief which they seek. I will hear Counsel as to the form of any order required to give effect to my judgment and on the question of listing on which I have as yet heard no argument.