A recent Employment Appeal Tribunal decision contains an interesting discussion of some difficult issues relating to legal professional privilege: Moving Brands Ltd v Heinl [2023] EAT 34.
The decision relates to communications between a solicitor (instructed on behalf of an individual client) and a third party, some but not all of which were copied to the client. The decision distinguishes between the two categories, finding that where the client was copied in the communications were “effectively” between solicitor and client and so questions of agency did not need to be considered. Where the client was not copied, the communications could not be covered by legal advice privilege unless the third party was acting as the client’s agent, as legal advice privilege is limited to solicitor-client communications (including via an agent).
The decision raises interesting questions as to what counts as a solicitor-client communication, including the test for agency for these purposes. Despite the decision, it should not be assumed that all communications to which a client is copied will be considered to be solicitor-client communications: no details are given in the present case as to why that conclusion was reached, but presumably the tribunal was satisfied, on the facts, that the substance of the solicitor’s communication in each case was with the client rather than the third party.
Where the client was not copied, the tribunal concluded that legal advice privilege did not...
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