Court: sets privilege precedent Companies no longer risk being automatically assumed to have waived privilege on documents if they apply to a court to decide whether they should be made public, following a victory for British American Tobacco (BAT) in the Court of Appeal this week.

Lord Justice Mummery found that although privilege had already been lost on the eight documents in question, the fact that BAT had agreed to let a US judge rule on whether they should be released to the public did not constitute a waiver of privilege.


The judgment will have significant ramifications for the thousands of documents currently being held in a Minnesota depository as part of the $289 billion (£159 billion) litigation being brought by the US government against a host of tobacco companies, accused of concealing medical research on the harmful effects of smoking.


Because privilege has been lost but not voluntarily waived, prosecutors will not be able to force BAT, or its lawyers, to answer questions on the background to the documents or the reasons behind instructions.


The Court of Appeal hearing related to an earlier High Court examination of BAT's lawyer Andrew Foyle, partner at City firm Lovells, by an English barrister at the request of the US government. There was no suggestion of any wrongdoing by Mr Foyle.


Lovells partner Ruth Grant, who also acts for BAT, said: 'This is a very important decision, because the first instance judge was prepared to suggest that by signing up to a consent order, pursuant to which a judge would decide if documents should be made public, that that was enough to constitute a waiver of privilege. If that had been accepted by the Court of Appeal, it could have raised some serious issues for other entities going forward.'