LEGAL PROFESSIONAL PRIVILEGE PERSISTS AFTER DISSOLUTION OF A COMPANY: COURT OF APPEAL DECISION TODAY

In Addlesee & Ors v Dentons Europe LLP [2019] EWCA Civ 1600 the Court of Appeal held that legal professional privilege survives the dissolution of a limited company.

 

THE CASE

The claimants wanted to bring an action against a company that has now been dissolved. The claimants wanted to see documents that passed between the dissolved company and their solicitors.  The Master held that legal advice privilege still attached to the documents and they could not be disclosed. The claimants appealed.

THE APPEAL

The question on appeal was summarised:

“whether, legal professional or legal advice privilege having attached to a communication by reason of the circumstances in which the communication was made, the communication remains privileged unless and until privilege is waived; or whether the privilege is lost if there is no person entitled to assert it at the time when a request for disclosure is made.”

THE COURT OF APPEAL DECISION

The Court of Appeal upheld the Master’s decision, albeit for different reasons.  The privilege remained in existence. There was no one who could waive the privilege.

Lord Justice Lewison

“I would hold that legal advice privilege, once established, remains in existence unless and until it is waived. It is established as a result of the purpose for which, and the circumstances in which, the communication was made. Whether there is no one who can now waive it; or whether the Crown could have waived it but has not done so; does not matter. I would therefore overrule Garvin; and hold that the Master was right in her refusal to order disclosure; but for different reasons.”