Can the identity of those instructing lawyers be protected by litigation privilege?

A recent decision by the High Court provides clarity on whether those instructing solicitors benefit from litigation privilege. In Loreley Financing (Jersey) No 30 Ltd v Credit Suisse Securities (Europe) Ltd [2022] EWHC 1136 (Comm), Credit Suisse Securities (Europe) Ltd (the Defendant) sought an order that the names of the individuals authorised to instruct Loreley Financing (Jersey) No 30 Ltd (the Claimant’s) lawyers were not subject to litigation privilege. The question of who gave instructions on the Claimant’s behalf to its lawyers was relevant to the Defendants’ argument that the claims were time barred.

Background

The underlying claim related to the purchase of notes as part of a collateralised debt obligation in 2007; this claim therefore raised limitation issues. The Claimant was a special purpose vehicle with no employees, therefore the question of whose knowledge can be credited to the Claimant was important. The Defendant was seeking numerous orders including one providing that the names of the individuals authorised to instruct the Claimant were not subject to privilege. The Claimant accepted that the question of which individual gave instructions on its behalf to its lawyers might have some relevance to the Defendant’s contention that the claims were time-barred, but asserted litigation privilege against the information sought. Litigation privilege applies to communications that were prepared for the dominant purpose of use in litigation that was contemplated at the time in question.

Decision

Mr Justice Robin Knowles CBE held that whether the identity of those communicating with a lawyer is subject to litigation privilege depends on whether two requirements are met:

• whether the communication itself is privileged; and
• if so, whether that privilege will be undermined by the disclosure of identity sought. 

It does not make a difference whether the individual communicating with the lawyer is authorised to give instructions on behalf of the client or has a different role.

The judge held that each case requires a decision to be reached on its own facts. He noted that there is no reason in principle why the fact that the position might be different in another case should have the consequence of attracting litigation privilege to the identity of those who give instructions in every case.

The judge found that in this case, the Claimant: (i) did not take the position that the privilege of the underlying communications would be undermined by the disclosure of the identity sought and (ii) had adduced no evidence that revealing the identity of those giving instructions would give clues as to the content of the particular instructions. The judge also found that there was no suggestion that the identity of the persons authorised was only available from privileged communications.

Key Takeaways

This case serves as a reminder that the identity of the individual(s) who instructed a lawyer may be privileged in some limited circumstances. In some cases, a party may be entitled to claim privilege on the basis that, on the facts of the case, it cannot disclose the information of who gave instructions without waiving privilege over the content of the instructions.

With thanks to Jamie Popplewell for his assistance in preparing this post.