As a corporation can only act through its employees, it is often assumed that all employees' communications with the corporation's lawyers will be privileged. In 2003, the Court of Appeal held that this is not necessarily the case. Only communications made between those authorised by the corporation to seek legal advice on its behalf and its lawyers will be privileged.

In a recent application in the RBS Rights Issue litigation, the Claimants sought disclosure of transcripts, notes or other records of interviews with RBS employees and ex-employees, made as part of two separate internal investigations. RBS resisted disclosure on the basis that the notes were subject to legal advice privilege; alternatively that all the notes which had been prepared by lawyers were protected from disclosure as lawyers' privileged working papers. No claim was made for litigation privilege.

All the claims to privilege failed. While this decision does not make new law, it highlights the difficulties inherent in making records of employee interviews in circumstances when litigation privilege does not apply.

We understand that the RBS have been granted permission to appeal this decision and that the judge has granted a leapfrog certificate enabling the appeal to proceed directly to the Supreme Court, subject to permission being given by the Supreme Court. If the appeal goes ahead, we will report further, in due course.
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