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Developments in legal privilege

  • United Kingdom
  • Financial services disputes and investigations

07-07-2015

The recent reported judgment in Property Alliance Group Limited v Royal Bank of Scotland Plc [2015] EWHC 1557 (Ch) considered whether RBS could assert privilege in relation to purportedly without prejudice communications between the bank and the (then) FSA leading up the publication of an FSA Final Notice and also whether RBS could continue to assert privilege as against third parties in relation to privileged materials previously shared with regulators during on-going LIBOR investigations into RBS’s conduct as a LIBOR rate setter.

The case is important as the court upheld (for the first time in an English law authority) the right for a bank to assert privilege in both of the above situations but went on to find on the particular facts of the case that RBS had lost that right because of the way it pleaded its defence in the subsequent litigation (in which the issue of disclosure and inspection of the privileged documents arose). The judgment also highlights the challenges in asserting a blanket claim for privilege in relation to the documents of any internal steering group set up to manage and oversee internal investigations (even where that group is run by external counsel as the secretariat).

We have produced the detailed briefing note on the case which sets out a one-page overview (page 3); 15 things which clients need to know about the case (pages 4 and 5); and provides a detailed review of the court’s reasoning and some commentary as to the case’s wider implications (pages 6 – 10).