Tamara Oppenheimer KC and Adam Sher, instructed by a team at Cahill Gordon & Reindel (UK) LLP, appeared for four Credit Suisse entities in an appeal on a novel question concerning whether litigation privilege protects the identity of the persons who were authorised by a party to communicate with its solicitors in relation to litigation. Robin Knowles J had accepted Credit Suisse’s arguments below that the identity of those individuals was not so protected, save in exceptional cases where to reveal the identity would reveal something of the content of a privileged communication. On 10 November 2022, the Court of Appeal handed down judgment (which is available here), unanimously upholding Robin Knowles J’s analysis.
The appeal arose in proceedings in which the Credit Suisse entities face allegations of fraud relating to the sale in mid-2007 of an RMBS-linked CDO to the Claimant (Loreley), a Jersey-incorporated SPV. In response to a limitation defence, Loreley rely on section 32 of the Limitation Act 1980, while Credit Suisse in turn assert that Loreley was aware of, or could with reasonable diligence have discovered, the matters upon which its claim is based prior to 2012. That in turn raised an issue as to whose knowledge is relevant for the purposes of section 32, and in particular who in fact gave the instructions on behalf of Loreley which led to the commencement and conduct of the litigation. Credit Suisse accordingly obtained an order requiring Loreley to identify the names of those giving instructions to its solicitors, which information Loreley refused to provide on the grounds that it was “by its nature” protected by litigation privilege.
Loreley argued that litigation privilege always covers the identity of persons who are authorised to give instructions to solicitors in the course of litigation. This was (Loreley claimed) because litigation privilege established a “zone of privacy” around a party’s preparations for litigation. Although it had adduced no evidence to the effect that revealing the identity of those giving instructions would reveal anything about the content of communications in this case, it sought to rely on a series of hypothetical examples to explain how in some cases it might do, thereby (allegedly) necessitating a blanket rule; for example, Loreley posited that important information abouta party’s litigation strategy might be revealed if the person giving instructions was revealed to be the company’s “Head of Litigation Settlement”.
The Court of Appeal (Males LJ, with whom Nicola Davies LJ and Sir Geoffrey Vos MR agreed) comprehensively rejected Loreley’s arguments, and accepted Credit Suisse’s, as to the scope and nature of litigation privilege. The Court held that whether the identity of a person giving instructions to a solicitor is covered by litigation privilege depended on whether disclosure of that identity would “inhibit candid discussion” between the lawyer and their client. The Court observed that “at least in general, there would be no such inhibition” and it is “commonplace” for the identity of such persons to be disclosed. If, in an “unusual case”, disclosure would inhibit candid lawyer-client discussion, it is for the party claiming privilege to explain and establish why. The judgment is a strong re-affirmation of fundamental principles of legal professional privilege, and of the burden placed on the party asserting privilege to establish those claims with evidence; mere assertions and “far-fetched” hypothetical examples will not be sufficient.