Scope of legal advice privilege for foreign in-house lawyers
In PJSC Tatneft v Bogolyubov & Ors [2020] EWHC 2437 (Comm) the Court refused an application for the disclosure of communications between the claimant and members of its in-house legal department in Russia, holding that:
- legal advice privilege under English law extends to communications with foreign in-house lawyers, provided they are acting in “the capacity or function of a lawyer”; and
- there is no additional requirement that foreign lawyers should be appropriately qualified, recognised or regulated as professional lawyers. Rather, it is the “function” of the relationship and not the “status” of the lawyer which is relevant in respect of foreign legal advisers, and that the courts should not be expected to make enquiries concerning the regulations governing and the standards applicable to foreign lawyers.
The capacity or function of a foreign in-house lawyer
Importantly, Moulder J, quoting Lord Neuberger in R (Prudential plc and another) v Special Commissioner of Income Tax [2013] UKSC 1, found that the capacity and function of foreign in-house lawyers extends to “communications passing between a client and its lawyers, acting in their professional capacity, in connection with the provision of legal advice”.
The recent Court of Appeal decision in R (Jet2.com Ltd) v Civil Aviation Authority [2020] EWCA Civ 35 also clarified that legal advice privilege applies to communications made in confidence with professional legal advisers for the dominant purpose of giving or obtaining legal advice, including communications with (English) in-house lawyers.
Qualification, recognition and regulation
The Court also concluded that divergent approaches between how legal advice privilege was applied to foreign lawyers and domestic lawyers would create issues of uncertainty and comity “if the court were obliged to express views on the qualifications and regulation of foreign lawyers”, and hence emphasised the importance of maintaining consistency.
Caution for clients
Tatneft is particularly significant for businesses with in-house legal teams located in multiple jurisdictions. In-house lawyers who also undertake executive and/or other business functions as part of their role should be especially cautious when communicating with those within their organisation and outside of it that not all of their communications will protected by legal advice privilege under English law; only those that fall within the definition of legal advice privilege will be protected.
With thanks to Joshua Battat for his assistance preparing this post.