ANDREW FOYLE: claim for blanket privilege fails - but he may seek it question by question

Lovells partner Andrew Foyle will attend a novel hearing in a massive US tobacco case against a client, after the High Court rejected his efforts to claim blanket privilege.

Mr Justice Moore-Bick last week ruled that Mr Foyle will be posed questions by a barrister on behalf of the US government in a special examination in the High Court.

It is part of a case against a host of leading tobacco companies, including BATCo, a US subsidiary of Lovells' client British American Tobacco (BAT) (see [2003] Gazette, 20 November, 3).

The US government accuses the tobacco companies of concealing medical research on the harmful effects of smoking and the addictive nature of nicotine.

Some are also accused of destroying documents.

It wants to ask Mr Foyle questions about his knowledge of BAT and BATCo's document management policy.

There is no suggestion that Mr Foyle was engaged in any wrongdoing and the US has assured him that he will not face any legal action.

Nor is there any claim of impropriety against BATCo.

The judge rejected outright Mr Foyle's claim for litigation privilege - a point which BAT is appealing and Mr Foyle has been given leave to appeal - but he accepted that legal advice privilege will be relevant for much of the questioning.

However, he said privilege would be less clear in relation to 'the organisation and implementation of the document review process'.

Mr Foyle will be able to raise the issue of privilege in response to individual questions.

Norton Rose partner Val Davies, who acts for Mr Foyle, said: 'The judge accepted that many of the communications are protected by legal advice privilege.

'It is very difficult just to say in abstract [whether privilege applies] when lawyers are giving advice relating to organising and implementing the review of documents - I believe that could well still be protected by legal advice or litigation privilege.'

Steven Loble, partner at Loble Solicitors who acted for the US government, said: 'A High Court judge will preside over the proceedings to answer questions of privilege.

This is novel - these proceedings are normally overseen by a barrister.

Mr Foyle will be given lines of questioning and sample questions in advance, but not the actual questions he will be asked.'

BATCo will be able to attend the examination and raise objections on its own behalf when it considers privilege may be breached.

A spokeswoman confirmed that the company will be claiming privilege on 'ad hoc communications'.

If the judge rules that some information is not privileged, BATCo will be able to challenge this with an expedited appeal to the Court of Appeal.

BAT chairman Martin Broughton will not be forced to give evidence; the judge considered the grounds for calling him to be too broad.

There was no suggestion of any wrongdoing by Mr Broughton.

Rachel Rothwell