What Constitutes Legal Advice?
The appeal to the House of Lords concerned the question of whether communications between the Bank of England and its legal advisers for advice and assistance in relation to the Bingham Inquiry concerning the collapse of BCCI were protected by legal advice privilege. The Court of Appeal had held that legal advice privilege only protects advice as to legal rights and obligations, and that this did not include what it regarded as “presentational” assistance in putting relevant factual material before the Inquiry. In doing so, the Court of Appeal substantially narrowed the scope of legal advice privilege, opening up the need for difficult considerations as to whether a lawyer’s retainer was for the dominant or primary purpose of genuine legal advice or of mere “presentational” advice in order to determine what, if any, non-legal advice or communications would be protected as part of the “continuum” of giving and getting genuine legal advice. Furthermore, Lord Phillips MR went so far as to
