The interviewees could not be treated as the 'client' for the purpose of establishing the elements of legal advice privilege.
Legal advice privilege applies to confidential communications which pass between a client and their lawyer and have come into existence for the purpose of giving or receiving legal advice about what should prudently and sensibly be done in the relevant legal context. If successfully pleaded, privilege entitles a party to withhold inspection of any privileged evidence from a third party or the court.
It is established law that lawyers' working papers will be privileged if they betray or at least give a clue as to the trend of legal advice being given.
This case involved proceedings brought by RBS shareholders to recover investment losses following the collapse of RBS shares.
RBS sought to claim legal advice privilege in respect of a series of notes and transcripts of interviews with 124 RBS employees and former employees as part of two separate investigations undertaken by RBS.
The Judge in this case held that for the purposes of legal advice privilege, the 'client' shall be only those employees who are authorised to seek and receive legal advice from the lawyer. On this basis, legal advice privilege did not extend to information provided by employees and ex-employees for the purpose of being placed before a lawyer.
The Judge also rejected RBS' alternate argument that the interview notes were lawyers' working papers which betrayed or gave a clue as to the trend of legal advice being given. In reaching his decision, the Judge noted that this will ultimately turn on the evidence, but he drew a distinction between circumstances where the documents merely reflect a 'train of inquiry' and where they give a clue as to the trend of legal advice.
It is understood that RBS intends to seek permission to appeal this decision, so this may not be the last we hear of this matter.
As seen in this case, there is always a risk that interviews with employees and former employees of a client corporation will be disclosable in the absence of litigation (where litigation privilege may apply).
Employers and their lawyers should be clear which employees are authorised to seek and receive legal advice. Advice provided to other employees may not be protected by legal advice privilege.