PJSC Tatneft v Bogolyubov & Ors

Waiver of legal professional privilege requires a sufficient reference to privileged legal advice and reliance on that advice to advance a case on an issue for determination. The inquiry is fact-sensitive and turns on the purpose of the reference, not rigid labels such as “content” and “effect”. A party does not waive privilege merely by denying an opponent’s assertion about what was discussed. Where waiver is established, its scope is defined objectively by the relevant transaction, considered realistically and subject to fairness. The waiver does not necessarily extend to all documents in the same category or touching the same issue.

During a ten-week commercial trial, the second defendant applied for declarations and inspection orders concerning alleged waivers of Tatneft’s legal professional privilege. The alleged waivers concerned communications with S-K, advice relating to a criminal complaint, legal analysis of criminal-investigation materials, and advice concerning the assignment of S-K’s claims before its liquidation.

The application required the court to determine whether privilege had been waived, the scope of any waiver, and whether disclosure should follow.

1. Waiver test. Applying PCP Capital Partners v Barclays Bank [2020] EWHC 1393 (Comm), the reference to legal advice must be sufficient and the party must rely on it to support or advance its case on an issue for decision. The question is fact-sensitive. The content/effect distinction cannot be applied mechanically.
2. A purely narrative reference, or a reference to the fact or subject matter of a communication, does not ordinarily waive privilege. The court rejected the suggested general rule that a reference to subject matter is always, or almost always, insufficient. The proper question is reliance and its purpose in context. Expandable v Rubin [2009] BCC 443 and Thomas Pink v Victoria’s Secret UK Ltd [2014] EWHC 1955 (Ch) were explained on that basis.
3. A negative assertion does not itself waive privilege where it merely responds to the opposing party’s assertion that something was discussed or advised. That situation was distinguished from Mid-East Sales v United Engineering [2014] EWHC 892, where the party positively relied on having acted on legal advice.
4. Privilege was not waived in relation to the purpose or approach of the second criminal complaint. The evidence did not establish reliance on the substance of legal advice. Nor was there a broader waiver from the totality of the evidence concerning communications with S-K. Some evidence concerning recovery discussions did amount to reliance and waiver.
5. Where waiver exists, the scope is determined by identifying the relevant transaction realistically, avoiding artificially narrow or wide outcomes, and applying fairness so that disclosure is not partial or misleading. The approach in R (Jet2.com) v Civil Aviation Authority [2020] EWCA Civ 35 was applied.
6. The waiver concerning advice on the product of the second criminal complaint extended to all advice given in 2012 about that product, but not to advice concerning the first complaint, underlying materials, or all communications about the alleged scheme and responsible persons.
7. The reference to advice from Akin Gump concerning the reasons for and scope of the assignment of claims waived privilege. The waiver extended to all Akin Gump advice on that subject, without a time limit, but not to advice from other lawyers.
8. For communications concerning recovery of contractual indebtedness, the waiver extended to advice about recovery steps from the end of 2007 to March 2010, and to advice concerning enforcement of the Russian judgment in Ukraine from September 2009 to March 2010. It did not extend to recovery from third parties or all communications on related topics.
9. The parties were expected to agree the form of order. In most instances no further disclosure was required because Tatneft had confirmed that documents had not been withheld.