Function Over Formal Qualifications: Legal Advice Privilege Upheld For In-house Lawyers In Foreign Jurisdictions

• Published date: 28 September 2020
• Subject Matter: Corporate/Commercial Law, Privilege
• Law Firm: Clyde & Co
• Author: Mr David Milner, James Roberts and Tim Crockford

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.

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...