[...]
Longmore J decided the matter correctly on the basis of precedent. As to Upjohn Co v United States 449 US 383, Burger CJ stated the rule as applying to employees and ex-employees. All subsequent lower court decisions in the United States have followed his lead.
Jonathan Crow for the Attorney General (written submissions). For the reasons given in the Bank's and the Law Society's cases, the correct test for the application of legal advice privilege is that set out in Balabel v Air India [1988] Ch 317, in particular at pp 330-332. The Court of Appeal's judgment is wrong. In particular: (i) it is incompatible with the public policy on which legal professional privilege is based; (ii) it is based on too narrow a definition of "legal advice"; (iii) it introduces an unwarranted distinction between individual and corporate witnesses and (iv) it is inconsistent with previous authority.
[...]
[...]
None of these judicial dicta tie the justification for legal advice privilege to the conduct of litigation. They recognise that in the complex world in which we live there are a multitude of reasons why individuals, whether humble or powerful, or corporations, whether large or small, may need to seek the advice or assistance of lawyers in connection with their affairs; they recognise that the seeking and giving of this advice so that the clients may achieve an orderly arrangement of their affairs is strongly in the public interest; they recognise that in order for the advice to bring about that desirable result it is essential that the full and complete facts are placed before the lawyers who are to give it; and they recognise that unless the clients can be assured that what they tell their lawyers will not be disclosed by the lawyers without their (the clients') consent, there will be cases in which the requisite candour will be absent. It is obviously true that in very many cases clients would have no inhibitions in providing their lawyers with all the facts and information the lawyers might need whether or not there were the absolute assurance of non-disclosure that the present law of privilege provides.
[...]