Balabel v Air India

Facts

Solicitors acted for a client in the grant of a lease by Air India. The other side sought the solicitors' file. Much of it was not a formal request for advice. It was the working correspondence needed to carry the transaction through.

Issue

Does advice privilege cover only the letter that asks a legal question, or the whole of the related correspondence?

Held

The Court of Appeal, Taylor LJ, held that privilege covers the continuum of communications between solicitor and client in the course of getting the advice. It is not confined to the document that states the question of law. Purely commercial facts, recorded for their own sake, are not privileged.

Principle

Look at the transaction as a whole. What is necessary to give or receive the advice is privileged. A pre-existing document does not become privileged by being put in the file.

Why it matters

It is the case on mixed law and fact. Derby Magistrates is the case on why the privilege, once it attaches, is not weighed against some other person's need.

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