23 novembre 2020
Disputes Quick Read – 57 de 88 Publications
Disputes Quick Read: Privilege lost in the EU post-Brexit (with exceptions)
With the Brexit transition period ending on 31 December 2020, you'll need to understand the impact the UK's departure from the European Union will have on your ability to assert privilege over your communications with your lawyers.
If you operate in Europe
If your organisation operates in Europe, it's important to note that – as there's no agreement currently in place regarding legal professional privilege – from 1 January 2021, solicitors qualified in the UK and not within a European jurisdiction will likely be treated as third-party lawyers.
As such, they won't attract privilege in matters before the European Commission such as competition investigations and related proceedings.
Moreover, communications between an organisation and its internal legal teams do not generally attract privilege in such matters, as in-house lawyers aren't considered to be sufficiently independent.
What about the English courts?
Back at home, the English court has provided helpful guidance in PJSC Tatneft v Bogolyubov & Ors, as to how the English courts will determine whether privilege applies to communications between an organisation and its internal legal teams, which may be internationally qualified.
In that case, the court held that legal advice privilege applied to communications between a client and its Russian in-house legal team, despite the fact that those communications would not attract privilege under Russian law.
If your business is currently in (or becomes involved in) court proceedings in England and Wales, the laws and procedural rules of England and Wales will govern issues of privilege – not the laws of the location in which the lawyers are practising.
Legal advice privilege
Under English law, legal advice privilege (LAP) entitles a person to withhold from disclosing confidential communications which pass between an individual and their lawyer, which have been created for the dominant purpose of giving or receiving legal advice.
LAP also applies to communications between the client and solicitors acting in private practice, as well as those that are employed by organisations as lawyers (ie in-house lawyers). Save for a few limited exceptions, in-house solicitors will, however, still need to maintain their regulatory status.
Under English law, LAP will also extend to communications between a client and its foreign lawyers.
In this case, the applicant sought to rely on the fact in Russia in-house lawyers – ie those employed by organisations – don't meet the regulatory requirements imposed on in-house lawyers under English law.
This is because there is a distinction in Russia between "Advocates" who are considered to be independent professional lawyers (who are members of the Russian bar and regulated by Russian Federal Law) and other lawyers (such as those working within the claimant's legal department) who are not Advocates.
Additionally, under Russian law, the concept of Advocate's secrecy (the closest equivalent to LAP) only applies to Advocates. On that basis, the applicant sought to argue that LAP should only extend to communications between a client and its Advocate, and not to those with the legal advisers working within its own legal department.
The court's decision
In finding that the communications in question were covered by LAP under English court, the court held as follows:
- LAP will apply to foreign lawyers in the same way that it applies to lawyers qualified in England and Wales provided that those lawyers are carrying out "the role of lawyer".
- It's the function of the lawyer that's relevant, not whether they have the same regulatory qualifications and requirements as solicitors and barristers qualified in this jurisdiction.
- There's no additional requirement that foreign lawyers be "appropriately qualified" or regulated as "professional lawyers".
- As a result, the English court won't investigate the regulatory requirements of the jurisdiction in which foreign lawyers are qualified or practising as a lawyer in determining whether privilege applies.
Whether the same documents would be disclosable in any proceedings in Russia would be determined by the procedural rules in Russia.
Here to help
This case serves as an important reminder that where legal advice is being sought from either internal legal teams or external firms of solicitors outside of the UK, the application and any limitations of privilege should be considered at the outset.
Please get in touch with a member of our Disputes & Investigations team if you'd like to discuss how we can assist you with this.
Dans cette série
New SFO Director announces bold plans to tackle fraud
21 March 2024
par plusieurs auteurs
What are the litigation trends for 2024?
1 February 2024
par Katie Chandler, Emma Allen
ClientEarth v FCA: Challenging Regulator Decisions
12 February 2024
par Tim Strong, Nicole Baldev
First of its kind judicial guidance on the use of AI in the courts
14 December 2023
Witness familiarisation - does it affect the court's assessment of witness credibility?
13 December 2023
The use of AI in Trial Witness Statements post-PD 57AC
23 October 2023
par plusieurs auteurs
CAT to hear the first application for a collective settlement approval order
17 October 2023
Failure to prevent fraud – a new offence?
14 August 2023
par plusieurs auteurs
Supreme Court rules that APP fraud victims cannot rely on Quincecare Duty
4 August 2023
par plusieurs auteurs
The Law Commission's Consultation Process on the Arbitration Act 1996 – taking stock
21 July 2023
What does the latest decision of the CAT in the Mastercard/Visa proceedings mean for class actions?
10 July 2023
Disputes Quick Read: ClientEarth refused permission to pursue directors of Shell
1 June 2023
par plusieurs auteurs
Disputes Quick Read – developments in the fixed costs regime
3 May 2023
par James Bryden
Disputes Quick Read: Service by email – are the rules any clearer?
20 April 2023
par James Bryden
Disputes Quick Read - What do practitioners think about making alternative dispute resolution (ADR) compulsory?
8 March 2023
Disputes Quick Read: What are the litigation trends for 2023?
2 March 2023
par Katie Chandler, Emma Allen
Disputes Quick Read: further guidance on witness statement preparation rules
14 February 2023
Disputes Quick Read: A cautionary tale – settlement agreement (un)wittingly releases all claims for fraud
13 February 2023
Disputes Quick Read: Why the UK should join the Hague Judgments Convention 2019
8 February 2023
par Jessie Prynne
Disputes Quick Read: extensive information orders granted against crypto exchanges following hack
19 January 2023
Disputes Quick Read: A new approach to giving evidence? WhatsApp with that?
3 October 2022
par Gemma Broughall
Disputes Quick Read: Ethereum Merge - what legal issues arise?
22 September 2022
par Ben Jones, Emma Allen
Disputes Quick Read: New obligations on cryptobusinesses to report under the UK sanctions regime
9 August 2022
par Nick Maday
Disputes Quick Read: Disclosure - What information can be redacted?
25 July 2022
par Edward Spencer
Disputes Quick Read: what claims exist when a smart contract is breached?
6 July 2022
par Emma Allen
Disputes Quick Read: New gateway for serving Norwich Pharmacal Orders and Bankers Trust orders out of the jurisdiction
Welcome news for those pursuing fraud claims in the English Courts
28 July 2022
Disputes Quick Read: Disclosure Pilot Scheme – here to stay
21 July 2022
par Edward Spencer
Disputes Quick Read: Defining the duty - the limits of the responsibility assumed by professionals
27 July 2022
par Stuart Broom
Disputes Quick Read: Climate change litigation – successful challenge to government's Net Zero Strategy
29 July 2022
Disputes Quick Read: Judicial Review and Courts Act 2022 – now in force
17 June 2022
par Stephanie High
Disputes Quick Read: an important reminder of the duty to disclose electronic documents in native format
13 June 2022
par Edward Spencer
Disputes Quick Read: ENRC prevails in claim against former solicitor
26 May 2022
Disputes Quick Read: Climate change litigation update – McGaughey v Universities Superannuation Scheme Limited
31 May 2022
par plusieurs auteurs
Don't lose your keys: Bitcoin developers do not have a duty to assist owners in recovering lost cryptocurrency
4 April 2022
Disputes Quick Read: The new witness statement preparation rules – a year on
5 April 2022
par Stephanie High
Disputes Quick Read: ClientEarth v Shell – climate change litigation shifts focus to UK companies
31 March 2022
par plusieurs auteurs
Disputes Quick Read: High Court rules that failure to provide adequate data security is not a positive act
21 September 2021
par plusieurs auteurs
Disputes Quick Read: Key changes to the Disclosure Pilot Scheme
13 September 2021
par Edward Spencer
Disputes Quick Read: Judicial Review and Courts Bill – unpacking the UK government's proposed amendments
6 September 2021
par Stephanie High
Disputes Quick Read: Will litigants be compelled to participate in alternative dispute resolution?
2 August 2021
Disputes Quick Read: Freezing injunctions – maximum custodial sentence imposed for breach
21 July 2021
Disputes Quick Read: The online future of civil justice – the end of the legal profession or the end of legal drudgery?
15 July 2021
par Jessica Thomas
Disputes Quick Read: Will the courts change forever post-COVID?
26 May 2021
par David de Ferrars
Disputes Quick Read: One Blackfriars administrators cleared of misfeasance
5 May 2021
par Stephen O'Grady
Disputes Quick Read: Not your prerogative – the Independent Review of Administrative Law reports its recommendations on judicial review
21 April 2021
par Stephanie High
Disputes Quick Read: Amendments to the Disclosure Pilot Scheme – a step in the right direction
31 March 2021
Disputes Quick Read: UK Supreme Court rules on the territorial extent of the SFO's powers
26 February 2021
par Tim Strong, Akash Jamang
Disputes Quick Read: No dropping anchor – parent company liability for environmental claims
24 February 2021
Disputes Quick Read: What lawyers need to know about new witness statement preparation rules
20 January 2021
par Stephanie High
Disputes Quick Read: Should you still choose the English courts to have jurisdiction in your international contracts after Brexit?
12 January 2021
par Tim Strong
Disputes Quick Read: Privilege lost in the EU post-Brexit (with exceptions)
23 November 2020
Disputes Quick Read: Law on interest applicable to US dollar awards reaffirmed
16 October 2020
Disputes Quick Read: Care required when drafting SPA claim notices
23 September 2020
par plusieurs auteurs
Disputes Quick Read: Why the modernised LCIA rules are a welcome update
7 October 2020
par Nick Storrs
Disputes Quick Read: The importance of proper service
26 May 2020
par Edward Spencer
Disputes quick read: Mandatory changes to Statements of Truth
18 May 2020
par Katie Chandler
Disputes Quick Read: COVID-19 and supply chain disruption – key issues
9 April 2020
par plusieurs auteurs
Disputes Quick Read: High Court orders parties to explore options for 5-week remote trial
15 April 2020
Disputes Quick Read: Tomlin Orders – ensuring the confidentiality of settlement terms
27 April 2020
par plusieurs auteurs
Disputes Quick Read: UK's OFSI fines Standard Chartered Bank £20 million for sanctions breaches
21 April 2020
par Stephanie High
Disputes Quick Read: A different approach to witness evidence
11 March 2020
par James Bryden
Disputes Quick Read: Coronavirus - a growth in virtual courts?
17 March 2020
par Stuart Broom
Disputes Quick Read: Embracing remote hearings – the experience to date
26 March 2020
par plusieurs auteurs
Disputes quick read: climate change activism by litigation
26 February 2020
par Tim Strong, Andrew Howell
Disputes Quick Read: Commercial Court's arbitral power shift
21 February 2020
par Andrew Howell
Disputes Quick Read: Court stays evictions during COVID-19 – is this lawful?
2 June 2020
par Georgina Jones
Disputes Quick Read: Will the civil justice system change forever post COVID-19?
16 June 2020
par Georgina Jones
Disputes Quick Read: Privilege waiver warning
2 July 2020
par Tim Strong, Georgina Jones
Disputes Quick Read: Retailers reign supreme in Visa and Mastercard proceedings
9 July 2020
Disputes Quick Read: Scope of duty and the SAAMCo counterfactual following Manchester Building Society
3 December 2021
Disputes Quick Read: Facilitating transactions in cryptoassets - Lord Leggatt and the point of commercial law
24 November 2021
par Stuart Broom
Disputes Quick Read: Privy Council clarifies the law on freezing injunctions in aid of foreign proceedings
8 October 2021
par Katie Chandler
Disputes Quick Read: Climate change litigation – what's the latest?
10 January 2022
par Tim Strong, Jessica Thomas
Disputes Quick Read: Court decisions on the Disclosure Pilot Scheme – the 2021 roundup
20 January 2022
Disputes Quick Read: Assumption of responsibility - tax schemes and investors
22 March 2022
Disputes Quick Read: Dealing in crypto? Be careful what you call it
7 April 2022
par plusieurs auteurs
Related Insights
Internal investigations - raising the bar
par Andrew Howell
The use of AI in Trial Witness Statements post-PD 57AC
par plusieurs auteurs
Law Commission's report on digital assets: what's next?
par Georgina Jones et Claudia Blofeld