Solicitors' representation letters provided to a company's auditors as part of the audit process are not protected by either legal advice privilege (s 118) or litigation privilege (s 119) of the Evidence Act 1995, because the dominant purpose of such letters is to assist the auditors with the audit process rather than to provide the client company with legal advice or professional legal services relating to litigation. Auditors are not agents of the audited company for the purpose of receiving privileged communications. Companies in litigation should be aware that contingent liability information provided by their solicitors to auditors may be discoverable by opposing parties via subpoena to the auditors.
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