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Privilege, Disclosure and Mistake: A Practical View from the Bar by James Bickford Smith

In his monthly column for Practical Law, James Bickford Smith discusses the Court of Appeal’s decision in Atlantisrealm Limited v Intelligent Land Investments (Renewable Energy) Limited [2017] EWCA Civ 1029. This article has been reproduced with the permission of the publishers. For further information visit or call 020 7542 6664.

The last 18 months have seen a string of important decisions concerning the law of legal professional privilege. Some have seen unexpected results that have caused some alarm among lawyers, both litigators and those with primarily advisory practices. The lesson that many have drawn is that instinctive views as to what is and is not privileged will increasingly need to give way to careful analysis of what type of privilege is asserted, in which documents and on what basis.

It is open to question whether the uncertainty that has followed from these decisions is a welcome development. It is settled law that the right of a person to assert absolute confidentiality in a document to which legal professional privilege applies is “a fundamental human right established in the common law” (R v Special Commissioner ex p Morgan Grenfell & Co Ltd [2002] UKHL 21). Exceptions to that rule are, and should be, few and far between; most derive from statute, from a determination that the doctrine never applied at all, or from a determination that privilege has been waived. As such, lingering uncertainty as to the boundaries of privilege, or the circumstances in which this is lost, is unwelcome.

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