legal advice privilege

High Court holds that English law legal advice privilege can extend to such communications regardless of whether or not the lawyers are in-house practitioners.

By George Schurr

In PJSC Tatneft v Gennady Bogolyubov & Ors.,[i] the English High Court held that legal advice privilege can apply to communications with foreign lawyers in certain circumstances. Specifically, privilege can extend to such communications if:

  • The communications are between a client and its lawyers (whether or not they are acting “in-house”).
  • Such communications are made in connection with the provision of legal advice.
  • The lawyers with whom the client is communicating are acting in their professional capacity.

The English courts will not look into whether the foreign lawyers are “appropriately qualified” or recognized / regulated as “professional lawyers” as a matter of local law.

The CAT’s Royal Mail v. Ofcom judgment considers what constitutes abusive conduct, the “as-efficient competitor” test, and the use of expert economic advice.

By David Little, Gregory Bonné, Alexandra Luchian, and Nathan Wilkins

On 12 November 2019, the UK Competition Appeal Tribunal (the CAT) published its judgment rejecting Royal Mail’s appeal against a £50 million fine imposed by the UK Office of Communications (Ofcom), the UK communications and postal services regulator, for abuse of a dominant position in bulk mail delivery following a complaint from Whistl.

This post focuses on three areas of the CAT’s judgment: (1) the distinction between abusive conduct and mere preparatory acts; (2) the relevance of the “as-efficient competitor” test when assessing exclusionary conduct by dominant companies; and (3) the treatment and protection of expert economic advice.

By Oliver Browne and Daniel Smith

Following Three Rivers (No 5) [2003] EWCA Civ 474, the High Court has held that notes of interviews of employees, prepared as part of certain internal investigations by a bank’s solicitors, for the purpose of enabling the bank to seek and receive legal advice are not protected by legal advice privilege. Central to the ruling was the finding that relevant employees did not fall within the definition of the “client” for legal advice privilege purposes. The Court also confirmed that English privilege rules should be applied in cases before the English court so that, even though the interview notes were likely to have been privileged as a matter of US law, they were not privileged in English proceedings.

The decision follows the recent judgment in Astex Therapeutics Ltd v Astrazeneca AB [2016] EWHC 2759 (Ch) in which Chief Master Marsh held that certain employees were not part of the “client” for legal advice privilege purposes, but with only a brief analysis on the point. In the present decision, Mr Justice Hildyard considered the question in much greater detail.