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Function over formal qualifications: legal advice privilege upheld for in-house lawyers in foreign jurisdictions

  • Market Insight 25 September 2020 25 September 2020
  • UK & Europe

  • Professional Practices

The High Court has rejected a specific disclosure application by ruling that legal advice privilege can apply to communications with unqualified in-house 'lawyers' based in foreign jurisdictions in the same way that it does to communications between clients and private practice lawyers in England and Wales.

Function over formal qualifications: legal advice privilege upheld for in-house lawyers in foreign jurisdictions

Authors: Tim Crockford, James Roberts and David Milner

Interlocutory decision in PJSC Tatneft -v- Bogolyubov & Others [2020] EWHC 2437 (Comm)

The respondent sought to withhold the disclosure of certain communications involving members of its in-house legal team based in Russia. The relevant individuals were not qualified members of the Russian bar and so the communications would not attract privilege under local Russian law. 

Nevertheless, Moulder J has ruled that legal advice privilege did attach to the communications under the laws of England and Wales: the determinative question is whether the individuals in question were acting in the capacity or function of a lawyer. 

Whose privilege rules prevail?

Questions of privilege are determined according to the lex fori. An English court therefore determines issues of privilege in proceedings before it according to the laws of England and Wales. Whether the same communication might be privileged in a foreign jurisdiction has no bearing.

This has been aptly illustrated here. Although communications between the respondent and its in-house legal team in Russia would not be covered by ‘advocate’s secrecy’ (which is broadly equivalent to privilege) because the relevant individuals were not members of the Russian bar, the English court was concerned only with the application of substantive England and Wales principles.

Some readers may recall another example of this, albeit from the inverse perspective, in the form of the 2010 decision in C-550/07 P - Akzo Nobel Chemicals et Akcros Chemicals / Commission. In that case the Court of Justice of the European Union held that it did not recognise the existence of legal advice privilege for inhouse lawyers based in the UK.

Practical effect

Courts in England and Wales will look to the "function" of the adviser-client relationship rather than the "status" of the adviser under local law and regulations. This approach avoids the need for multi-national enterprises to delve into the qualifications and regulatory status of their foreign in-house lawyers, which could otherwise lead to unwelcome uncertainties (as well costing time and money for employers at the practical level).

The ruling emphasises the importance of public interest motives for protecting open and comprehensive discussions between clients and their legal advisers. This initially slightly surprising emphasis on function over formality also underscores the courts' cautiousness to avoid any endangerment or erosion of the principle of legal advice privilege.

End

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