A High Court decision in December 2016 stopped RBS claiming privilege over interview notes following employee interviews into the sub-prime crisis. In an article published in the Times on 2 March 2017, Keith Thomas and Elaina Bailes look at the ramifications of this decision and ask: "In a world of WikiLeaks, the "snooper's charter" and blackmailing email hackers, can anyone keep anything confidential anymore?"
As part of the evidence in the RBS rights' issue litigation arising from the 2008 issue, lawyers conducted interviews with a number of employees into the bank's conduct. The notes were said to contain the interviewers 'mental impressions' as well as facts from the interviewees.
RBS claimed legal privilege over the notes taken by its lawyers. In the High Court, Mr Justice Hildyard rejected this claim, stating that as the interviewees were givers of information, and not receiving legal advice, it did not apply.
The decision upholds the balance between privilege and access to information in court proceedings. This has led to panic within the industry with firms reportedly advising corporate clients not to have lawyers take notes during meetings.
As the Times article states, the decision has done little to clarify an area of legal uncertainty:
"Unfortunately, the decision is not going to be appealed to the Supreme Court, so the debate over the scope of privilege is set to continue. While some confusion persists around the scope of privilege in internal investigations, the present state of the law promotes the kind of transparency and scrutiny necessary to avoid the issues that lead to the financial crisis of 2008."
This article was published in The Times on 2 March 2017. The full article can be read here (subscription required).
RBS and where legal privilege can't keep the corporate closet locked
Keith Thomas is a Partner and Head of the Investor Protection Litigation department. He has particular expertise in large scale, high value and complex shareholder and securities litigation. He has represented some of the largest institutional investors in both the English and European Courts.
Keith has been praised by Legal 500 for bringing "strategic brilliance and huge energy to litigation".
Elaina Bailes is an associate in the commercial litigation department and has been with the firm since August 2011. She specialises in commercial dispute resolution and international arbitration and has extensive experience acting for both claimants and defendants in a wide range of disputes.
Elaina studied at Oxford University, BA Philosophy and Theology (1st Class Honours) and then LPC at the College of Law London (Distinction). She trained at Linklaters LLP and became an associate in their commercial litigation department before joining Stewarts Law in August 2011.
Senior Marketing Executive
Phone: +44 20 7822 8134