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Published 13 October 2020
The recent judgment in PJSC Tatneft v Bogolyubov & Ors considered whether legal advice privilege extended to client communications with a foreign lawyer, regardless of whether or not they were “in-house”. It held that the only requirement for legal advice privilege to cover such communications is that the adviser acts as a lawyer. No consideration need be given as to whether the foreign lawyer is “appropriately qualified” or regulated as a “professional lawyer” in their own jurisdiction.
Tatneft, the claimant and one of Russia’s largest producers of crude oil, alleged that the four defendants were involved in a fraud to divert payments away from Tatneft for oil supplied. Having claimed damages of $334m, Tatneft obtained a worldwide freezing order in March 2016 which prohibited each defendant from disposing or dealing their assets up to the value of £380m.
Legal Advice Privilege
Standard disclosure was ordered by the Court and Tatneft claimed privilege over a number of communications with its legal advisers. This included communications with the claimant’s Russian in-house legal team.
The second defendant argued that the communications with the in-house lawyers should be disclosed because in Russia, in-house lawyers are not members of the Russian Bar and they are therefore not ‘advocates’. “Advocates’ secrecy” (the Russian equivalent of legal advice privilege) applies only to advocates and does not attach to communications with in-house lawyers. The second defendant argued that, as Russian in-house lawyers are not advocates, they are not ‘appropriately qualified’, and that under English law, legal advice privilege does not apply to foreign lawyers who are not ‘appropriately qualified’.
The Court refused the application and ruled in favour of Tatneft, establishing that legal advice privilege extends to communications with foreign lawyers as long as the foreign lawyer in question acts in the capacity, or functions of a lawyer; it is not necessary to consider the qualifications of the specific individual. In coming to this conclusion, the judge examined the second defendant’s application as follows:
The judgment provides clarity that, in English proceedings, the rules of privilege will attach to communications with foreign lawyers, and that the courts will not be drawn into assessing the qualifications or specific title possessed by a lawyer in another forum. However, the judgment does not otherwise soften the conditions for privilege to apply. As such, when liaising with overseas lawyers, it is still important to remain mindful of the dominant purpose of the communication and the nature of the relationship (i.e. is it between “lawyer” and client) between the parties.
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