Three Rivers strikes again – emails between in-house lawyer and employee held not to be privileged

In the recent case of Glaxo Wellcome UK Ltd (t/a Allen & Hanburys) v Sandoz Ltd [2018] EWHC 2747 (Ch), the Court held that an exchange of emails between an in-house lawyer and an employee was not privileged.

The emails consisted of (i) an internal email by the in-house lawyer requesting information to send to external lawyers; and (ii) an employee’s response to that request. The emails were held not to be privileged because the defendants had not proved that the emails were sent for the purposes of the in-house lawyer giving legal advice to the employee. The more likely explanation was that the emails were part of the exercise of the in-house lawyer gathering information so that she could obtain legal advice from external lawyers. Such communications do not attract legal advice privilege. 

It was not relevant that the employee had authority (generally) to instruct lawyers where this was necessary to perform his duties. That was not the purpose of these particular communications. 

However, emails between the same employee and the same in-house lawyer were privileged, where the purpose of the communications was for the in-house lawyer to give legal advice to the employee. In that context, there was a lawyer-client relationship between them.

This case demonstrates the problems faced by corporate entities as a result of the decisions in Three Rivers (No 5) [2003] EWCA Civ 474 and, more recently, SFO v ENRC [2018] EWCA Civ 2006. For more information on those cases, and on their practical implications, follow this link.