Legal advice privilege has long been understood in England and Wales as a privilege attaching to the lawyer-client relationship. The Court of Appeal’s decision in Three Rivers District Council v. Governor and Bank of England (No 5)[1]cemented – or so many thought – the proposition that privilege could only attach to communications passing between a lawyer and a defined “client group”, and not to wider internal documents. But did Three Rivers (No 5) actually go that far? In a significant judgment in Aabar Holdings S.á.r.l. & Ors v. Glencore Plc,[2] Mr Justice Picken concluded that it did not, and that intra-client documents created for the dominant purpose of seeking legal advice can also attract legal advice privilege.
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Public Inquiries: Purpose, Process and Potential Risks
From healthcare scandals to building safety failures and pandemic responses, public inquiries are now a frequent feature of public life, dominating headlines and shaping public debate. Calls for public inquiries are increasing, both in Parliament and in the media, with many considering that they offer a reliable mechanism for the government to demonstrate transparency, restore trust and provide a structured process for learning lessons. However, they can pose significant commercial and reputational risks to businesses and individuals, serving as a very open and high-profile forum for criticism.
‘Indefinitely’ or ‘Perpetually’: How Long Are We Doing This?
The Court of Appeal’s judgment in Zaha Hadid Limited v. The Zaha Hadid Foundation[1] concerns the question of whether parties to a contract of indefinite term have a right of termination.
UK Supreme Court Confirms There Is No Limitation Period for Unfair Prejudice Petitions
The UK Supreme Court’s judgment in THG plc v. Zedra Trust Company (Jersey) Ltd[1] conclusively resolved the uncertainty regarding whether statutory limitation periods apply to unfair prejudice petitions. The Supreme Court held – by a majority – they do not, reversing the Court of Appeal and restoring what had been the recognised position for decades.
Out of Order! Court of Appeal Overturns Strike Out
The Court of Appeal has delivered a judgment that should give pause to any litigator drafting the terms of an unless order or seeking a strike out on its breach. In Midland Premier Properties Limited v. Doal , the court allowed an appeal against a striking out order, emphasising that unless orders must be strictly construed and that debarring a defendant from defending is a remedy of last resort – even where there have been genuine failures in the disclosure process.
A Lesson on Contractual Interpretation From the Court of Appeal
In last week’s judgment in Sahara Energy Resource Limited v. Societe Nationale de Raffinage SA (SONARA) the Court of Appeal overturned the High Court’s surprising ruling that claims labelled “undisputed” in an agreement between the parties did not mean that the claims were agreed. In restoring the natural meaning of the word, the Court of Appeal reiterated some of the key principles of contractual interpretation that had fallen by the wayside in the court below.
The Penalty Rule: Recent Guidance From the English High Court
The judgment in Houssein & Others v. London Credit Ltd[1] provides a useful summary of the English penalty rule and guidance on its application in practice. It is an important reminder that a clause will be struck out in its entirety if any element of it is determined to be penal.
Disclosure: How the English Courts Balance Comity, Risk of Foreign Sanctions and the Fair Disposal of Proceedings
The Court of Appeal’s judgement in Various Claimants v. Standard Chartered plc[1] is a significant decision on whether an English court may compel disclosure of documents that are confidential under foreign regulatory regimes – here, US suspicious activity reports (SARs) and confidential supervisory information (CSI) – and how the court balances comity, the risk of foreign sanctions and the fair disposal of English proceedings.
US Executive Order on AI Regulation Signals Litigation Risks Across Jurisdictions
This update covers the latest US Executive Order seeking to limit US state AI regulation and establish a national AI policy framework.
Multinational companies should monitor cross-border implications, especially in light of other evolving regimes like the EU AI Act and the proposed Digital Omnibus on AI, which will impact businesses’ AI compliance roadmaps.
Read Cooley’s full article on the Executive Order.
Director Personally Liable for Breach of Confidence
In Kieran Corrigan & Co Ltd v. OneE Group Ltd, Bashir Timol and others , a company’s director was held personally liable for breach of confidentiality for signing off on the company’s marketing of a tax mitigation structure that was heavily based on information provided to it by the claimant.