Ruling in PJSC Tatneft v Bogolyubov & Ors [2020] EWHC 2437 (Comm), the court held that communications with foreign lawyers are privileged, whether or not they are in-house or independent, and regardless of whether privilege would apply in their home jurisdictions.
PJSC Tatneft had sought to withhold disclosure of internal documents with company employees, including members of its legal department. One of the defendants disputed that privilege applied on the basis the in-house lawyers were not members of the Russian Bar and their activities did not fall under the Russian regulations for advocates, therefore, under Russian law the advice would not be privileged. However, the court held that it should not enquire into the sufficiency of local qualifications or seek to make a like-for-like comparison with England and Wales.
‘Practically speaking, it will now be very difficult to challenge a claim to privilege where the qualifications of a foreign lawyer do not easily equate to those in England and Wales,’ said Barry Smith, associate, Aliant Law, in an article for LexisNexis dispute resolution analysis.
‘This case will be of particular interest to those who practice in white collar crime, where the question of privilege is often raised in the context of in-ternal investigations.’
Smith said: ‘The court confirmed that the rationale for legal advice privilege can be found in the strong public interest that clients can obtain legal advice, and that these communications should be confidential—Three Rivers (No 6) [2005] 1 AC 610.’
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