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Cross-border jurisdictions problematic for privilege

Different concepts of ‘privilege’ can present challenges, but there are a few steps that can bring some predictability, say Colin Passmore and Alexandra Webster

24 July 2017

The well-known and much-maligned ruling of the Court of Appeal in Three Rivers District Council v The Governor and Company of the Bank of England (No 5) limits claims to legal advice privilege (LAP) by corporates in England and Wales to confidential communications between their lawyers and individual employees authorised to instruct them, defined for those purposes as the ‘client’.

Employees who fall outside of that typically narrow group are treated as third parties, meaning that any records of their communications with lawyers representing the corporate will generally not be protected by LAP.

This approach has been adopted in the recent High Court decisions of RBS Rights Issue Litigation and SFO v ENRC. We understand that ENRC is seeking to appeal Mrs Justice Andrews’ decision but, for now at least, the principle is firmly embedded into ...

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