Once privileged, always privileged

What happens to privileged papers once a company client ceases to exist? Does disclaimer by the Crown mean privilege is waived?

During the course or proceedings against a firm of solicitors, the claimants sought copies of papers passing between Dentons (formerly Salans) and Anabus Holdings, a Cypriot Company. By then, the Company had been dissolved and the Crown had disclaimed all of its property.

Dentons objected to disclosure on the basis the files remained privileged and they were professionally obliged to protect that right even though the client no longer existed.  No doubt that analysis suited Dentons more than it did the claimants.

Was that right? Perhaps surprisingly, this had only been considered once before in Garvin Trustees v Pensions Regulator where it had been held such papers would no longer be privileged.

The Court of Appeal rejected the Garvin Trustees decision and refused to order the papers were to be disclosed, reaffirming the maxim “once privileged, always privileged”. Disclaimer by the crown did not amount to waiving privilege. The Court also ordered the applicants to pay 80% of Dentons costs as it was a lawyer’s duty to assert privilege, even in circumstances where there was no client.

The decision serves as a reminder of the fundamental importance of privilege. Once a document is privileged, it remains privileged to the world at large unless and until waived. It does not matter whether there is anyone capable of asserting that right - the question to ask is whether there was anyone capable of waiving it and if so, whether they had done so. 

Victor Addlesee & Ors v Dentons Europe LLP [2019] EWCA Civ 1600

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