Information Gathering By In-House Lawyer In Order To Obtain External Advice May Not Be Protected By Legal Advice Privilege

In a recent decision, the High Court has held that an in-house lawyer's communications with an employee of the business, who was accepted to be her in-house "client" for some purposes, were not protected by legal advice privilege where those communications were to seek and obtain information to provide to external solicitors in order to obtain their legal advice: Glaxo Wellcome UK Ltd v Sandoz Ltd [2018] EWHC 2747 (Ch). In doing so, Chief Master Marsh applied the narrow interpretation of "client" established by the notorious Three Rivers No 5 decision as recently confirmed by the Court of Appeal (albeit with reluctance) in the ENRC case (considered here).

Significantly, the decision illustrates that an individual can be a lawyer's "client", and therefore entitled to communicate information to the lawyer under protection of privilege, for one purpose but not others.

The decision underlines the importance of considering, in any given context, who is likely to be considered the lawyer's "client" for that particular purpose. Where an external lawyer is advising, and the in-house lawyer is the relevant "client" for that purpose, the in-house lawyer's internal information gathering exercise may not be privileged (unless litigation privilege applies, as in that context a lawyer/client communication is not essential). The position may be different where the in-house lawyer's advice is sought in addition to that of the external lawyer.

The decision also contains important messages as to how evidence should be presented in supporting a claim to privilege.

Background

The privilege challenge arose in the context of a passing off claim relating to an inhaler product. The defendants' external lawyer, Mr Collins, served a witness statement in support of the defendants' claim to privilege.

The claimants challenged a claim to legal advice privilege made by the defendants in respect of two documents, described as follows in a list exhibited to Mr Collins's statement:

"11. Email from Susanne Groeschel-Jofer internal to the Sandoz group seeking information to provide to Bristows for the purposes of Bristows giving legal advice. ...

14. Email from Susanne Groeschel-Jofer internal to the Sandoz group seeking information to provide to Bristows for the purposes of them giving legal advice, along with internal Sandoz group email providing the information requested."

Ms Groeschel-Jofer was a German-qualified in-house lawyer employed by a company in the Sandoz group...