There have been plenty of cases featuring issues of privilege since the last edition of the Global Privilege Handbook. Certain key cases are highlighted below.

The case of Civil Aviation Authority v. R Jet2.com Ltd [2020] EWCA Civ 35 confirmed that legal advice privilege is subject to a "dominant purpose" test, meaning that in order to benefit from legal advice privilege, there is a requirement to show that the dominant purpose of the relevant document or communication in question was to give or obtain legal advice (rather than for a commercial purpose for example). In the case of communications made for a dominant commercial purpose, privilege would still be lost (or not apply in the first place) even if the communication was contemporaneously sent to a lawyer for the purpose of giving legal advice. This case serves as a warning that merely copying a lawyer to a multi-party communication or having a lawyer attend a meeting is not enough to attract privilege.

In State of Qatar v. Banque Havilland SA [2021] EWHC 2172 (Comm), an accountant's report into the origin and circulation of a presentation prepared by an employee of the defendant bank, which had been leaked or hacked, was not protected from disclosure by litigation privilege. The court found that it had not been prepared when litigation was in contemplation or for the sole or dominant purpose of conducting that litigation. Following the leak, the bank initiated an investigation. The bank argued the report was subject to litigation privilege because it was being prepared at a time when adversarial proceedings were reasonably in contemplation. The judge concluded that this was too general an apprehension to support a claim for litigation privilege. Additionally, the judge wasn't convinced that the dominant purpose of the report was anticipated litigation, rather it was to find out the facts and satisfy the regulator that the bank was acting appropriately. This case shows the importance of the timings of expert instructions, ensuring a clear paper trial of the reasons for the instructions and of being cognizant of the dominant purpose test for communications to attract privilege.

In Loreley Financing (Jersey) No 30 Ltd v. Credit Suisse Securities (Europe) Ltd and ors [2022] EWHC 1136 (Comm), the court held that litigation privilege could not be claimed in respect of the identities of the individuals giving instructions to their lawyers on their behalf in relation to the litigation. The court found that whether the identity of a person communicating with a lawyer is privileged depends on whether: (i) the communication itself is privileged; and (ii) that privilege will be undermined by the disclosure of the person's identity. That will depend on the facts of each case (but a positive finding in respect of (ii) will be rare). In this case the court found there was no evidence to show that the privilege would be undermined, and therefore the identity information was not protected by privilege.