Legal privilege is a recurring issue for UK lawyers representing clients in litigation, investigations, and opposite regulatory bodies. Now, courtesy of Brexit, there is a new issue to address: since 1 January, lawyers operating in both the UK and EU member states need to consider, more carefully than ever, the different rules of privilege when structuring investigations and advising on potential competition law issues that could result in the involvement of the European Commission (EC).
Legal privilege in England and Wales
The application of English law to legal privilege is an important issue that is regularly debated in court. Rightly so: it is a fundamental human right, central to the administration of justice; it is in the public interest that individuals and firms should be permitted to seek and receive legal advice, and investigate and gather evidence, without losing the benefit of privilege.
Legal privilege applies, under English law, to both lawyers employed in private practice and lawyers employed by companies and firms. As affirmed in September 2020 in PJSC Tatneft v Bogolyubov and others  EWHC 2437 (Comm), privilege extends to communications with in-house and private practice foreign lawyers without regard to their particular national standards, regulation or rules on legal privilege. The fact that in-house lawyers are not independent but paid employees of the recipient of their legal advice is irrelevant under English law.
Last year, there were several hotly contested privilege disputes determined by the English courts, including the following cases addressing the issues of scope of legal advice privilege and waiver of privilege.
In Civil Aviation Authority v R (ex p Jet2.com Ltd)  EWCA Civ 35 the Court of Appeal reaffirmed the scope of legal advice privilege: only communications created for the dominant purpose of obtaining or giving legal advice will be protected from disclosure on the grounds of privilege.
For example, if the dominant purpose of an email is to obtain the commercial views of a non-lawyer then it will not be privileged, even if a subsidiary purpose is simultaneously to obtain legal advice from a lawyer who also receives the email. Jet2 also reinforced the position that an attachment to a privileged email will not automatically be protected by privilege as well.
Later in the year, in PCP Capital Partners LLP and another v Barclays Bank Plc  EWHC 1393 (Comm), the Commercial Court clarified what constitutes a waiver of privilege. In that case, the judge held that privilege had been waived even though witnesses had only referred to the effect (rather than the content) of legal advice.
This is a reminder that making any reference to legal advice in any communications with third parties should be approached with caution.
EU legal privilege
The position is different in respect of competition law-related administrative or enforcement procedures conducted by the EC. In these circumstances, EU law dictates that legal privilege will only apply to documents (meaning that those documents do not need to be disclosed to the EC) if both of the following conditions are met:
- The communications were made for the purposes and in the interests of the firm’s right to defend itself in actual or potential EU and EEA competition proceedings;
- The communications emanate from independent (ie not in-house) lawyers entitled to practise in the EEA.
Case 155/79 AM & S v Commission  ECR 1575 and C-550/07 P - Akzo Nobel Chemicals and Akcros Chemicals v Commission  2 A.C. 338.
The impact of Brexit
These EU legal privilege rules have created an issue for in-house lawyers for some time, but Brexit broadens it. In the context of actual or potential EU and EEA competition proceedings, UK lawyers are now third-country lawyers. That means there is a real risk that the EC will not recognise as privileged any communications that seek or give legal advice from lawyers qualified in the UK.
This gives rise to several potential scenarios where companies that continue to have sales or a presence in the EU and/or EEA post-Brexit may be required to disclose legal advice from UK-qualified lawyers to the EC in the context of a EC investigation or procedure. For example, where:
- legal advice has been given to companies based in EU or EEA member states,
- one or more of the recipients of legal advice is physically based in the EU or EEA (eg general counsel or director is based in Germany), and
- legal advice has been given to a UK subsidiary of an EU parent company which could be deemed to have access to its UK subsidiary’s documents.
To avoid this risk of disclosure, lawyers (both in-house and private practice) and their clients must carefully consider how legal advice is procured, given and shared when they face issues that might touch on competition law requirements and, ultimately, may involve the EC.
Along with the many changes and challenges presented by Brexit, UK lawyers need to be alive to the changed status of legal advice in the context of EC proceedings.
Both in-house and private practice lawyers should ensure a plan is implemented to manage the new risk that legal advice given by lawyers qualified in the UK may become disclosable to the EC, where before Brexit, it would have been privileged.
In doing so, it would be prudent to review all active or potential cases and investigations with a cross-border element to assess the associated risk of this change. Now is a good time to refresh training sessions on privilege, and reinforce good practices that increase the likelihood that communications are protected by privilege, including ensuring clients engage with the legal team early when possible disputes are on the horizon or other risks arise.
Clare Reeve Curatola is senior associate at international law firm Bryan Cave Leighton Paisner
Post-Brexit webinar: Last chance to register
Tuesday 9 February at 17:00
Isabel Taylor, a partner at Slaughter and May, and Thomas Sebastian, a barrister at Monckton Chambers, explore post-Brexit ramifications and the impact on private sector businesses of the new subsidy control regime.
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