In the case of Loreley Financing (Jersey) No 30 Ltd v Credit Suisse Securities (Europe) Ltd  EWHC 1136 (Comm) the High Court has clarified, for the first time, that whether the identity of those communicating with a lawyer on behalf of a corporate client in ongoing litigation is privileged depends on whether two requirements are met:
- Is the communication privileged?
- If so, will that privilege be undermined by disclosure of the identity sought?
The defendant (Credit Suisse) was seeking orders that, among other things, the names of the individuals authorised to instruct the claimant’s lawyers were not subject to privilege. The claimant accepted that the question of who gave instructions on its behalf to its lawyers was relevant to the defendant’s contention that the claims were time-barred.
The judge rejected the argument that the identity of those providing instructions is protected simply because it falls within a “zone of privacy” around the preparation of a party’s case. The judge also found that lawyer/client communications may be protected both by litigation privilege and legal advice privilege; the categories are not mutually exclusive.
Ultimately, the judge emphasised that each case would require a decision on its facts; there was no reason why litigation privilege should apply to the identity of those giving instructions in every case. In the particular circumstances of some cases, a party might be able to claim privilege on the basis that it could not disclose who gave instructions without waiving privilege in the content of the instructions. However, in this case the claimant had adduced no evidence that revealing the identity of those giving instructions would give clues as to the content of particular instructions. Therefore, there was nothing to show that privilege would be undermined by disclosure of the identity sought.
The judge added that it did not necessarily follow that disclosure of identity would be relevant to the issues in a particular case.
The judgment can be found below.