British court provides clarity on joint interest privilege

Court develops five-part test

The scandal surrounding Reading, Berkshire-based Keydata Investment Services seemed custom-made for salacious U.K. tabloid headlines. It featured a highflying founder, outsized executive paychecks, massive shareholder losses, allegations of fraud and a company collapse predicated on its peddling of “death bonds,” or repackaged American life insurance policies, which began to backfire when those Americans failed to die on schedule. While it provided fewer juicy headlines, Keydata’s recent courtroom pit stop in R (Ford) v. Financial Services Authority has provided England with much-needed clarity on joint interest privilege.

Key Guidance

Five-Part Test

Joint interest privilege exists to preserve the confidentiality of legal communications made for the benefit of more than one person—in this case, the executives claimed that advice was given to benefit not just Keydata but the individual executives. The court ultimately found that Ford had established that he had joint legal advice privilege with Keydata with respect to two emails concerning legal advice from Irwin Mitchell. The ruling may be a blow to the FSA’s investigation into Keydata, although it’s hard to say, because the content of the emails has been guarded. At press time, the court had not yet ruled on what consequences the FSA would face for using the material.

Associate Editor

Melissa Maleske

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