In an important judgment for businesses with legal teams based across a number of jurisdictions the English Commercial Court in PJSC Tatneft v Bogolyubov & Ors [2020] EWHC 2437 (Comm), has held that legal advice privilege under English law extends to communications with foreign in-house lawyers provided they act in their capacity as a lawyer. Further, the judgment makes it clear that there is no additional requirement that foreign lawyers should be appropriately qualified or recognised or regulated as professional lawyers.
Background
In PJSC Tatneft the second defendant made an application for disclosure of communications between the claimant and its in-house lawyers who were located in Russia, challenging the submission by the claimant that legal advice privilege protected communications between it and members of its internal legal department. The court dismissed the application and upheld the right of both foreign based lawyers and foreign based in-house lawyers to be protected by legal advice privilege.
The Court’s ruling
The Court dismissed the application on the following grounds:
A note of caution
As the court so clearly highlighted in this case, legal advice privilege is attached to the function and not the status of a lawyer irrespective of where that lawyer is located. Therefore, as long as lawyers (including in-house lawyers) act in their capacity as lawyers, their legal advice will be covered by legal advice privilege. However, an in-house lawyer may also undertake an executive, business and/or administration function as part of their work in a legal department; and such communication is not covered by privilege. Therefore, in-house lawyers, whether based in this jurisdiction or outside of it should always be aware, when communicating with those within their own organisation, and outside it, that not all their communications will be protected under English law; only those that fall within the definition of legal advice privilege.
As a side point, it is interesting to note that although the issue for the court related to the status of the lawyer, the court accepted at the outset the submission by the second defendant that the question of whether the communication was privileged should be decided as part of English, rather than Russian, procedural law. Although the judgment does not seem to go quite this far, it can be inferred that if the communication can be protected as privileged under English law, the fact that it is not privileged under the foreign law will carry little weight.
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