The Court of Appeal has reinforced the key principle from R v Derby Magistrates’ Court ex p B  that legal professional privilege is more than an ordinary rule of evidence limited to the facts of the specific case. It is a fundamental condition on which the administration of justice as a whole rests. If a communication attracts legal advice privilege, that privilege is absolute unless waived by the client.

Following Balabel v Air India, the test for identifying material subject to legal advice privilege is to determine whether the communication was made: (i) confidentially, (ii) for the purposes of legal advice. Communications will also be legally privileged if they are comprised within the "continuum of communications" passing between the client and legal advisor where advice is being given or obtained. Further, legal advice is not confined to telling the client the law, it must also include advice about what should prudently and sensibly be done in the legal context.

The Court of Appeal distinguished and clarified the decision in Conlon v Conlons Ltd, which has been relied on to contend that legal advice privilege does not extend to a communication which the client instructs the solicitor to convey to a third party. The Court of Appeal clarified that a statement by a solicitor to a third party conveying his client’s instructions does not automatically and without more give rise to a loss of confidentiality in the documents containing those instructions. The Conlon decision has to be confined to the situation where the client disputes what instructions were given to the solicitor.

On the facts, Raiffeisen brought an application for Ashurst to disclose documents that it held on behalf of a client, a funder for a share acquisition. Ashurst had previously issued a Solicitor’s Confirmation to Raiffeisen relating to monies that Ashurst held in escrow for its client and Raiffeisen argued that the confirmation was part of the continuum of communications between Ashurst and its client, such that its disclosure had waived the legal advice privilege over the remainder of communications within the same continuum of correspondence. The Court of Appeal distinguished the Conlon decision, finding that the issuance of the Solicitors Confirmation had not caused the privileged communications to lose their confidentiality. The Court went on to dismiss the application on the basis that legal advice privilege had not been waived.

See a copy of the judgment here.