PJSC Tatneft v Bogolyubov & Ors

Legal advice privilege extends to confidential communications with foreign lawyers acting in their professional capacity, including foreign in-house lawyers. The court does not enquire into the foreign lawyer’s training, regulation, registration or entitlement to equivalent privilege under local law. There is no additional requirement that the lawyer be appropriately qualified or recognised as a professional lawyer under English standards. The relevant question is functional: whether the person is acting as a lawyer in providing legal advice. Employment by the client and lack of independence do not, by themselves, prevent privilege. The party claiming privilege bears the burden of establishing it, but an application based on a different ground will not ordinarily permit the opposing party to introduce a new basis for challenging privilege in reply evidence.

The claimant asserted legal advice privilege over communications between its employees and members of its Russian in-house legal department, including documents prepared by those lawyers. The second defendant applied for specific disclosure under Civil Procedure Rules 1998 Part 31 and paragraph 14.2 of Civil Procedure Rules 1998 Practice Direction 51U.

It was common ground that the relevant lawyers were not Russian Advocates and were not protected by the Russian doctrine of advocates’ secrecy. The central issue was whether English law required foreign lawyers, and foreign in-house lawyers in particular, to be appropriately qualified, registered or regulated before communications with them could attract legal advice privilege.

1. Application refused. The court refused the application for inspection of documents withheld on the basis of legal advice privilege and refused the alternative request for further explanation.
2. Legal advice privilege is justified by the public interest in enabling clients to obtain candid legal advice. Consistently with that rationale, English law recognises privilege for communications with foreign lawyers. The authorities do not make local regulation, registration or equivalent foreign privilege a condition of protection.
3. The relevant inquiry is functional rather than status-based. Privilege attaches where communications pass between a client and lawyers acting in their professional capacity in connection with the provision of legal advice. The court therefore rejected the submission that foreign lawyers must be “appropriately qualified” by reference to English standards.
4. The same reasoning applies to foreign in-house lawyers. The fact that they are employees, act for one client, or are not independent practitioners does not prevent privilege. The position follows logically from the recognition of privilege for English in-house lawyers and from the broader approach to foreign lawyers.
5. The proposed reliance on the absence of Russian advocates’ secrecy, or on the lack of Russian registration or regulation, did not establish a basis for denying privilege. Requiring an investigation into national standards would create unfairness, inconvenience and problems of comity, particularly where the foreign legal system contains different categories of lawyers.
6. The claimant retained the burden of establishing privilege. However, the application was advanced on the basis that privilege did not apply to the relevant foreign in-house lawyers. The second defendant could not introduce, through reply evidence, a separate challenge based on the particular work allegedly performed by identified employees.

First instance decision. No prior appellate decision is stated in the judgment.