In 1991, the Government set up the Bingham Inquiry to enquire into the Bank of England’s supervision of the collapsed BCCI. A three-man committee, the BIU, was established to deal with communications between the bank and the inquiry. Freshfields Bruckhaus Deringer assisted the preparation and presentation of the bank’s evidence to the inquiry, which included a substantial written submission.
In subsequent proceedings against the Bank of England for misfeasance in public office, the BCCI liquidators applied for disclosure of documents prepared by bank employees used to assist the Freshfields’ instructions. On the grounds of advice privilege, the bank resisted this application – litigation privilege being unavailable because the Bingham Inquiry was not an adversarial process.
