In the recent case of R (on the application of Stewart Ford) v FSA [2011] EWHC 2583, Mr Justice Burnett considered the criteria for establishing joint interest legal privilege. The case was a judicial review of a decision taken by the FSA’s Regulatory Decisions Committee arising out of the FSA’s investigation into the activities of Keydata Investment Services Ltd (“Keydata”).

In December 2007, the FSA commenced a formal investigation into the activities of Keydata, who subsequently engaged solicitors to advise in relation to the investigation. The solicitor’s engagement letter to Keydata was written in terms that showed the company as the client and made no reference to Keydata’s executives as also being clients. In September 2008, the FSA notified certain Keydata executives (including the Claimant, Stewart Ford) that they were also being investigated in an individual capacity.

The dispute concerned a series of e-mails sent by the solicitors to the Claimant between February and June 2008. In August 2009, following a request by the FSA, Keydata’s administrators waived Keydata’s privilege in the emails. The FSA relied on the emails as part of its investigation into the executives’ activities. The Claimant brought judicial review proceedings asserting that the FSA had acted unlawfully in using privileged material. Mr Ford claimed that both Keydata and its executives had a joint interest in the legal advice provided in the emails.

Of the eight emails in question, Burnett J held that the executives could assert joint interest privilege in respect of two and granted the application in relation to those documents. As such, the FSA could not rely on the contents of those two emails in its regulatory proceedings against the executives or Keydata. The claim to joint interest privilege for the six other emails failed because those documents contained accountants’ advice and not legal advice. In Burnett J’s judgment, an individual claiming joint privilege with others in a communication with a lawyer, in circumstances where there is no joint retainer, will need to establish the following facts:

i. that he communicated with the lawyer for the purposes of seeking advice in an individual capacity;

ii. that he made clear to the lawyer that he was seeking legal advice in an individual capacity, rather than as a representative of a corporate body;

iii. that those with whom the joint privilege was claimed knew or ought to have appreciated the legal position;

iv. that the lawyer knew or ought to have appreciated that he was communicating with the individual in that individual capacity; and

v. that the communication with the lawyer was confidential.