Legal Advice Privilege and Presentational Advice

Extract

In Three Rivers District Council v. Governor and Company of the Bank of England (No. 6) [2004] UKHL 48, [2004] 3 W.L.R. 1274 (“Three Rivers (No. 6)”) the House of Lords held that legal advice privilege is not restricted to advice about legal rights and liabilities but extends to “presentational advice”.

The claim for privilege arose in litigation following an inquiry into the collapse of the Bank of Credit and Commerce International SA (“BCCI”). The inquiry considered the manner in which the Bank of England (“the Bank”) discharged its statutory role to supervise financial institutions in particular. The Bank engaged Freshfields, and appointed officials within the Bank (the Bingham Inquiry Unit (“BIU”)) to co-ordinate communications with and submissions to the inquiry. Section 1(4) of the Banking Act 1987 relieves the Bank of any liability unless it discharged its obligations “in bad faith”.