Introduction

The case of Addlesee & Ors v. Dentons Europe LLP ([2019] EWCA Civ 1600) addresses a pivotal question in legal professional privilege: Does legal advice privilege persist after the dissolution of a company, especially when the Crown disclaims all interest in the company's former property as bona vacantia? This commentary delves into the complexities of the judgment, exploring its implications for legal privilege, the precedents that influenced the court's decision, and the broader impact on future legal proceedings.

Summary of the Judgment

The Court of Appeal considered whether legal advice privilege attached to communications between the now-dissolved Cypriot company, Anabus Holdings Ltd, and its lawyers, Dentons Europe LLP (formerly Salans LLP), remained intact despite the company's dissolution and the Crown's disclaimer of interest in its former property. Master Clark had previously held that the privilege subsisted, distinguishing it from the Upper Tribunal's decision in Garvin Trustees Ltd v The Pensions Regulator [2015] Pens LR 1, where it was held that privilege did not survive dissolution when restoration of the company to the register was impossible. The appellate court, however, overruled Garvin, asserting that legal advice privilege remains unless explicitly waived, regardless of the company's status post-dissolution.

Analysis

Precedents Cited

The judgment extensively references pivotal cases that have shaped the understanding of legal professional privilege (LPP). Key among them are:

• Three Rivers DC v Governor and Company of the Bank of England [2004] UKHL 48: Established that LPP should reflect the underlying policy reasons and remains a fundamental condition for the administration of justice.
• R v Derby Magistrates' Court ex p B [1996] 1 AC 487: Affirmed that LPP is absolute and should not be subjected to exceptions once established.
• Garvin Trustees Ltd v The Pensions Regulator [2015] Pens LR 1: Held that LPP does not survive the dissolution of a company when restoration is impossible. This case was directly overruled in the present judgment.
• Morgan Grenfell & Co Ltd v Special Commissioners of Income Tax [2002] UKHL 21: Clarified that LPP is a fundamental human right and not merely a procedural immunity.
• B v Auckland District Law Society [2003] UKPC 38: Emphasized the absolute nature of LPP, requiring unqualified assurances of confidentiality.

Legal Reasoning

The court's reasoning pivoted on the foundational principles of LPP, emphasizing its absolute nature once established. The key points include:

• Nature and Purpose of LPP: LPP is designed to ensure clients can communicate freely with their lawyers without fear of disclosure, underpinning the administration of justice.
• Attachment of Privilege: Privilege attaches at the time of communication, based on the purpose and circumstances, and remains intact unless explicitly waived.
• Dissolution Does Not Erase Privilege: The dissolution of a company does not inherently terminate LPP associated with prior communications. The privilege remains until actively waived.
• Bona Vacantia Consideration: Even when properties pass to the Crown as bona vacantia, privilege is preserved unless the Crown actively waives it. The Crown’s disclaimer in this case was deemed insufficient to extinguish the privilege.
• Policy Over Substance in Precedents: The court prioritized the enduring policy that LPP is fundamental and should not be undermined by procedural or circumstantial changes like dissolution.

Impact

This judgment reinforces the robustness of legal advice privilege, ensuring that dissolved entities cannot easily circumvent LPP protections. It provides clarity that LPP is a persistent right, safeguarded by overarching public policy interests, and not easily dismissed by structural changes to the client’s status. Future cases involving dissolved companies will reference this decision to uphold the continuity of privilege, thereby influencing how legal documents and communications are treated post-dissolution.

Complex Concepts Simplified

Understanding the nuances of this judgment requires familiarity with several legal concepts:

• Legal Advice Privilege (LPP): A protection that ensures communications between a lawyer and their client remain confidential and cannot be disclosed without the client's consent.
• Bona Vacantia: Latin for "ownerless goods," referring to property that reverts to the Crown when an individual dies without heirs or a company is dissolved without successors.
• Dissolution of a Company: The formal closure of a company’s legal existence. Post-dissolution, the company cannot engage in legal actions or own assets except those passed to bona vacantia.
• Waiver of Privilege: The voluntary relinquishment of legal privilege by the entitled party, allowing previously protected communications to be disclosed.
• Upper Tribunal Decision: Refers to a higher court within the tribunal structure whose decisions are binding on lower tribunals but subject to appeal.

Conclusion

The Court of Appeal's decision in Addlesee & Ors v. Dentons Europe LLP marks a significant affirmation of the permanence of legal advice privilege. By overruling the earlier Garvin Trustees Ltd v The Pensions Regulator, the court underscored that LPP is not contingent on the ongoing existence of the client entity. This judgment fortifies the trust between clients and legal advisors, ensuring that the confidentiality of legal communications remains inviolate even amidst corporate dissolution and ownership transitions. The ruling emphasizes the paramount importance of LPP in maintaining the integrity of legal proceedings and safeguarding the fundamental rights of clients within the justice system.