Legal advice privilege: The legacy of Three Rivers (No. 5) and the challenge of providing consistent protection to all client types

Abstract

Legal advice privilege operates in the corporate context subject to a dominant purpose test and an agency-based control mechanism. This mechanism fails to reflect the privilege's rationale and prevents the dominant purpose test from giving corporations the same level of protection that the privilege provides to other client types. Following analysis of approaches in other common law jurisdictions, this article concludes that the optimum control mechanism for English Law is the dominant purpose test unfettered by the agency-based control mechanism and extended to encompass third parties. It is the first significant attempt to consider the merits of the agency-based control mechanism since the operation of the dominant purpose test in this context was confirmed by the Court of Appeal. It rebuts the suggestion by some academics that legal advice privilege should be restricted in the corporate context by asserting that it is by expansion of the privilege's ambit that consistency of protection across client types will be achieved.