British American Tobacco (BAT) will not be forced to hand over a memorandum written by a partner at City firm Lovells following a victory in the US appeal court last week.

The court ruled that the tobacco company had not waived privilege on the advice given by litigation partner Andrew Foyle.


Lovells: privilege waiver denied

The US justice department had sought disclosure of the memo as part of its litigation against BAT and other tobacco companies in the US lower courts, which began in September. Some of the companies are accused of destroying documents and concealing medical research on the harmful effects of smoking. BAT denies the charges.

The appeal court rejected the argument that BAT had waived privilege on the document because it had failed to log it with an earlier list of privileged documents. However, it left it open to the lower court to decide whether privilege attaches to the memorandum in the first place.


A spokesman for BAT said: 'We are delighted with the result. Legal privilege is something worth fighting for, even though this decision has taken a long time. We have been defending privilege on this document for years now, but if we let go on this, where will it stop?'


Lovells partner Ruth Grant said: 'If the US court had decided that there had been a waiver of privilege because the document had not been logged, that would have been a worry for other parties in a similar position.'


The House of Lords is expected to issue its long-awaited written ruling on legal advice privilege in the Three Rivers case this week. In August, the Lords overturned a controversial Court of Appeal decision that limited legal advice privilege to advice relating to 'legal rights and obligations' - as opposed to presentational advice - immediately after the oral hearing (see [2004] Gazette, 5 August, 1).