Post Office scandal shows rules around legal professional privilege need urgent reform, study shows

The legacy of the Post Office scandal shows the rules around legal professional privilege need urgent reform, a new report shows.

Ethical standards and rules about corporate governance should be strengthened to prevent abuse of privilege, experts from the Universities of Oxford and Exeter have said.

The law around corporate-legal secrecy – legal professional privilege as it applies to corporates and other organisations – should be reformed in the light of the evidence that has emerged in the Post Office Inquiry.

The report recommends privilege for corporations and other organisations should be qualified to provide judges with a discretion to lift privilege in appropriate cases.  

This would help judges to better perform a balancing exercise when a party seeking documents can show they have a genuine need for the materials and that their substantial equivalent cannot be obtained by other means without undue hardship.

Judges should also be more inclined to consider challenges to privilege where they currently arise. They are currently too inclined to accept at face value the assertions of organisations like the Post Office that material is privileged when it is not.

The research, by Andrew Higgins from the University of Oxford, and Richard Moorhead, from the University of Exeter, was produced as part of the Post Office Project.

Professor Higgins is General Editor of Civil Justice Quarterly and author of Legal Professional Privilege for Corporations, the second edition of which is due to be published in late 2025.  Professor Moorhead is a member of the Horizon Compensation Advisory Board.

Professor Moorhead said: “A thorough review of legal privilege, considering it from first principles, and based on how privilege actually impacts on behaviour is needed, especially in corporate contexts.

“Reforms should ensure the purpose of legal professional privilege aligns better with its practice. In this report we give some ideas as to what modest reform could look like.”

Professor Higgins said: “The current ‘cautious’ approach of courts to reviewing privilege claims including, in particular, greater use of inspection in camera by the courts or similar approaches for suitable cases should be reversed.”

“Ultimately, however, courts should be given the power to override privilege claims by corporations where it is in interests of the administration of justice.”   

In the report researchers set out some of the ways legal professional privilege problems appear to have manifested based on evidence given to the Horizon IT Inquiry.

The report contains suggestions for reforms which should be made as a priority to improve the operation of legal professional privilege, even if a review doesn’t take place.