This presentation by Renato NAZZINI, Professor of Law & Director of Research in Construction Law, King's College London, was made during the discussion “Treatment of legally privileged information in competition proceedings” held at the 128th meeting of the OECD Working Party No. 3 on Co-operation and Enforcement on 26 November 2018. More papers and presentations on the topic can be found out at oe.cd/tlp.

1. Legal Professional
Privilege:
Retrospective and
Prospective

2. BACK TO BASICS
© Professor Renato Nazzini, 2018 - all rights reserved

3. Fundamentals
• Three Rivers (No 6) [2004] 3 WLR 1274 (Lord
Scott): it is necessary in our society, a society in
which the restraining and controlling framework is
built upon a belief in the rule of law, that
communications between clients and lawyers,
whereby the clients are hoping for the assistance of
the lawyers' legal skills in the management of their
(the clients') affairs, should be secure against the
possibility of any scrutiny from others, whether the
police, the executive, business competitors,
inquisitive busybodies or anyone else
• Lord Hoffmann described legal professional
privilege in R (on the application of Morgan
Grenfell & Co Ltd) v Special Commissioner of
Income Tax [2003] 1 AC 563 as “a fundamental
human right long established in the common law”
• So legal professional privilege at common law is a
fundamental right grounded in public policy

4. No
balancing
act
• R v Derby Magistrates Court Ex p B [1996] 1
AC 487: could a court order disclosure of
legally privileged documents concerning legal
advice given to A that could provide B with a
defence to a charge of murder? No, said the
House of Lords.Lord Taylor CJ: “The principle
that runs through all [the authorities] is that
a man must be able to consult his lawyer in
confidence, since otherwise he might hold
back half the truth. The client must be sure
that what he tells his lawyer in confidence
will never be revealed without his consent.
Legal professional privilege is thus much
more than an ordinary rule of evidence,
limited in its application to the facts of a
particular case. It is a fundamental condition
on which the administration of justice as a
whole rests”

5. THE POSITION OF IN HOUSE
LAWYERS
© Professor Renato Nazzini, 2018 - all rights reserved

6. Difference between in house
and private practice lawyers
© Professor Renato Nazzini, 2018 - all rights reserved
• Alfred Crompton Amusement Machines Ltd v Customs &
Excise Comms (No 2) [1972] 2 QB 102 (Lord Denning MR)
[Employed lawyers] are regarded by the law as in every
respect in the same position as those who practise on
their own account. The only difference is that they act for
one client only, and not for several clients. They must
uphold the same standards of honour and of etiquette.
They are subject to the same duties to their client and to
the court. They must respect the same confidences. They
and their clients have the same privileges
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7. Distinction between legal
advice and business
communications
© Professor Renato Nazzini, 2018 - all rights reserved
I speak, of course, of their communications in the capacity
of legal advisers. It does sometimes happen that such a
legal adviser does work for his employer in another
capacity, perhaps of an executive nature. Their
communications in that capacity would not be the subject
of legal professional privilege. So the legal adviser must be
scrupulous to make the distinction. Being a servant or
agent too, he may be under more pressure from his client.
So he must be careful to resist it. He must be as
independent in the doing of right as any other legal
adviser
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8. Risk of abuse
© Professor Renato Nazzini, 2018 - all rights reserved
It is true, as the Law Reform Committee said in their
report in 1967 on Privilege in Civil Procedure (Cmd. 3472)
that the "system is susceptible to abuse," but I have never
known it abused. So much so that I do not think the law
should be changed in the way that Forbes J. would have it.
There is a safeguard against abuse. It is ready to hand. If
there is any doubt as to the propriety or validity of a claim
for privilege, the master or the judge should without
hesitation inspect the documents himself so as to see if
the claim is well-founded, or not
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9. GOVERNING LAW
© Professor Renato Nazzini, 2018 - all rights reserved

10. Which
law
applies?
• Lex fori, applied in England and Wales
and in the EU under the AM&S and
Akzo approach
• Law with the closest connection with
the instructions
– e.g. the “touch base” approach
applied by federal courts in the US:
Golden Trade SrL v Lee Apparel Co,
143 FRD 514, 520 (SDNY 1992);
Gucci America, Inc v Guess?, Inc,
271 FRD 58 (SDNY 2010)
– the “most significant relationship”
test applied by certain state courts
in the US: Ford Motor Co v Leggat
904 S.W.2d 643, 647 (Tex 1995)

11. Benefits
of lex
fori
• Legal certainty
• Equal treatment of parties
• Expression of the public policy of
the forum, including its
fundamental rights

12. Nationality
of lawyer
• Re Duncan [1968] P 306: – does English law privilege protect
communications between a client and his foreign lawyers that
would not be protected under foreign law?
• Yes, because “the object is to protect the party who wishes to
bake the advice of professional men, and he would be
prevented from taking such advice if there was the hazard of
having it revealed on entering into a contest with an
opponent”: Reid v Langlois (1849) 1 Mac & G 627 (Lord
Cottenham LC)
• “The basis of the privilege is just as apt to cover foreign legal
advisers as English lawyers, provided only that the relationship
of lawyer and client subsists between them. Any other
conclusion would lead to an impossible position for if this
court were required to investigate the position of such
communications in foreign law it must first determine the
foreign law, but what law governs the relationship of English
client and foreign lawyer, at any rate, when no proceedings are
in contemplation? There is no forum and therefore no lex fori.
The nationality of the foreign lawyer is as irrelevant as his
address for this purpose” Re Duncan (Ormrod J)

13. Scope of
the
privilege
• Re RBS (Rights Issue Litigation) [2016] EWHC 3161
(Ch): whether interview notes taken by lawyers in
the US had to be disclosed in England, where they
were not privileged, notwithstanding they were
privileged in the US
• RBS put forward an argument that the “law of the
place with which the engagement or instructions,
pursuant to which the documents came into
existence or the communications arose, have their
closest connection” should apply
• Lex fori rule applies
• Its application does not depend on whether it
would result in protecting documents that would
not be protected abroad or denying privilege to
document that would be privileged abroad.
Irrational to have a rule for the one case and
another in the other
• Lex fori applies not because the privilege is
“procedural” but because it is a matter of the
public policy of the forum

14. Residual
discretion
• However, there may be circumstances in which a court should
still exclude evidence that, while not protected under the lex
fori, would be privileged under a law that the parties could
reasonably have expected to apply, if not to exclude the
evidence would render the proceedings unfair
– US federal courts: Astra Aktibolag v Andrx Pharms 208
FRD 92 (SDNY 2002): ordering disclosure of Korean
documents that did not touch base with US would be
contrary to the public policy of the forum as the
documents would be protected under US law and the
reason why they were not privileged under Korean law
was that Korean procedural did not have US-style
discovery
– English courts: “ … the discretion is a salutary one, not
least in the context of a case where legitimate
expectations may also need, in all fairness, to be taken
into account in striking a balance”: Hildyard J in Re RBS,
para 182 – however, mere fact that the documents were
privileged in the US but not in England was not sufficient
to exercise the discretion

15. TOWARDS AN INTERNATIONAL
STANDARD?
© Professor Renato Nazzini, 2018 - all rights reserved

16. Some (modest) suggestions for
an international standard
© Professor Renato Nazzini, 2018 - all rights reserved
• Lex fori applies
• Necessary and sufficient requirement that adviser be a
lawyer under the rules of his own jurisdiction – lex fori
cannot deprive a lawyer of his professional status and
capacity - this should apply to employed lawyers as well as
to, e.g., government lawyers, seconded private practice
lawyers, etc.
• Nationality of lawyer irrelevant
• Effective judicial procedure to review and exclude evidence
protected by the privilege
• Scope of privilege determined by lex fori but …
• ... residual discretion to exclude evidence if not to do so
would render the proceedings unfair
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