In PJSC Tatneft v Bogolyubov and others [2020] EWHC 2437 (Comm), Moulder J confirmed that legal advice privilege covers communications with an in-house legal team, despite the fact that under Russian law in-house legal teams are not classified as advocates and therefore communication with in-house lawyers is not confidential. Where foreign lawyers are concerned, the courts will take a functional approach in determining whether communications attract legal advice privilege. The decision should provide reassurance to employers who rely on foreign legal teams for advice on employment matters.

Background

The second defendant applied for specific disclosure of correspondence between the claimant and its in-house legal team, which was based in Russia. The claimant resisted disclosure on the grounds that such communications were privileged.

The second defendant accepted that it is English law which is the lex fori as regards applications of privilege. However, they submitted that for legal advice privilege to apply to communications by a foreign adviser, that adviser must have an appropriate status as a matter of English law.

The second defendant argued that, as the jurisdiction in which the claimantʹs in-house legal team practised did not recognise their communications as privileged (the Russian concept of ʺadvocates secrecyʺ not extending to those not recognised as advocates), those lawyers did not have the appropriate status for their communications to be recognised as privileged as a matter of English law.

The decision

Moulder J reaffirmed that the policy underpinning legal advice privilege is that it is in the public interest that clients can obtain legal advice and that communications be kept confidential (paragraph 23). Legal advice privilege has therefore been extended to foreign lawyers, albeit without reference to the particular national standards, regulations, or rules relating to privilege which exist in the jurisdictions in which those foreign lawyers practise.

The second defendantʹs submission was found to have no basis in authority. The emphasis in previous decisions was that it is the function of the relationship and not the status of the lawyer which is relevant to determining whether their communications are capable of attracting privilege. This broad approach applied by English courts when extending privilege to foreign lawyers therefore did not require the court to consider them to be appropriately qualified. If it did, it would lead to uncertainty in the application of legal advice privilege and potentially raise issues of comity if the English courts were required to investigate and give a view on the nature of the qualifications and regulation of foreign lawyers.

There was thus no reason to depart from the ordinary English position that communications with in-house lawyers are equally capable of attracting privilege as those with independent solicitors and barristers. Moulder J held that ʺthe only requirement in order for legal advice privilege to attach is that they should be acting in the capacity or function of a lawyerʺ (paragraph 57). The communications in question were therefore privileged and the claimant succeeded in resisting their disclosure to the second defendant.

Functional approach reaffirmed

The roles of many employees, and the business of many employers who end up before the UK employment tribunals extend across multiple jurisdictions. Employees may liaise on a daily basis with colleagues from those other jurisdictions. It is a common occurrence for the employment tribunals to consider evidence compiled from work undertaken in those other jurisdictions as part of a claim concerning a UK-based employees role.

The decision in PJSC Tatneft v Bogolyubov could just as easily have arisen as a result of an attempt by a claimant to argue that their employerʹs communications with an in-house legal team in another jurisdiction were not capable of being privileged because of some particular feature of the way in which the legal profession in that jurisdiction is regulated. For example, an employee may be alleged to have committed misconduct on a trip to another country, and their employer might take advice from its in-house legal team in that country regarding the severity of that conduct according to the law of the place where it occurred. The defendantʹs argument in this case could have been made in exactly the same way.

Moulder J helpfully reaffirms that there is no additional threshold required for privilege to attach to such communications. If a foreign adviser is functioning as a lawyer, then privilege will attach to their communications even if that would not be the case in the jurisdiction in which the adviser is based. Employers should therefore be reassured that they can rely on a consistent application of privilege within litigation in the UK, no matter where their advisers are located. The functional approach emphasised by Moulder J means that, if the employer receives legal advice from those individuals, then it will be privileged.