Lovells partner Andrew Foyle this week lost an appeal to shelter him from the US government's questions in relation to a court case against a group of tobacco companies.

The Court of Appeal rejected Mr Foyle's assertion that his communications with BAT Co, a subsidiary of Lovells' client British American Tobacco (BAT), were subject to blanket legal advice privilege.

Lord Justice Brooke upheld the High Court position that while Mr Foyle may be able to resist successfully some questions by asserting privilege, it was not clear at this stage that privilege would apply to the overwhelming majority of questions.

It was therefore in the public interest that the examination should proceed, he said.

Mr Foyle will be examined in April, when questions drawn up by the US government relating to his knowledge of BAT and BAT Co's document management policy will be put to him by an English barrister.

The hearing will be presided over by a High Court judge rather than a barrister - a novel procedure - so that privilege issues on individual questions can be resolved immediately unless they are appealed.

BAT Co is being sued in the US along with other tobacco companies for allegedly concealing medical research on the harmful effects of smoking and the addictive qualities of nicotine.

Some companies are also accused of destroying documents (see [2003] Gazette 19 December, 6).

Mr Foyle's solicitor Val Davies, a litigation partner at Norton Rose, said: 'Andrew is in an invidious position.

As a solicitor he is obliged to try to maintain privilege and confidentiality, and that is what he has done.'

A spokeswoman for BAT Co said: 'BAT Co is disappointed with the decision of the Court of Appeal, in failing to reverse the lower court's findings in relation to its legal professional privilege, which the Court of Appeal itself acknowledged to be a basic human right.

'BAT Co will, in accordance with the December judgment of Mr Justice Moore-Bick, assert its privilege during the course of the examination of Mr Foyle.'

There is no implication of any wrongdoing by Mr Foyle, who has been assured by the US government that it will not seek to join him in the main action.

By Rachel Rothwell