“(1) Original and copy correspondence and other communications and documents passing either directly or indirectly between the Claimant and its legal advisers (including but not limited to advice, notes of telephone conversations and meetings, Instructions to Counsel, notes of consultations and conferences with Counsel, Counsel's written advice, drafts of any of the foregoing) all being confidential and consisting of, referring to, requesting or having been prepared for the purpose of requesting or giving legal advice and assistance.”
“A party who wishes to challenge the exercise of a right or duty to withhold disclosure or production must apply to the court by application notice supported where necessary by a witness statement.”
"Given that advocate's secrecy does not apply to in-house lawyers, it appears that the communications with, and documents generated by, Ms Savelova and/or Mr Glushkov and/or members of the Tatneft in-house "
“24…It in fact appears from the answers given that communications with and work by such individuals are not the subject of a valid claim to legal advice privilege as a matter of English law (nor, if and insofar as relevant, as a matter of Russian law). 25 As confirmed in the Trukhanov Memo 2, in-house lawyersare not members of the Russian Bar and their activity does notfall under regulation provided under Federal Law governingadvocates. 26… The Trukhanov Memo set out that there is a cleardistinction between the status of a self-employed, independentand officially registered advocate, and an employed in-houselawyer. The closest concept to legal professional privilege is "advocate's secrecy" … which applies to the relationship between advocates and their clients. On this basis the Second Defendant set out in the D2 Application that it appears that communications between Tatneft's employees / officers and member of its in-house legal team are not properly subject to a claim of legal advice privilege. 27. Mr Trukhanov further confirms that the Russian legalsystem has made a clear distinction that its legal concept ofadvocates secrecy (an equivalent to the English law ofprivilege) applies to advocates, but does not apply to nonadvocate in-house lawyers. This also applies to the Russian Court's power to order the disclosure of documents…”
“None of these judicial dicta tie the justification for legal advice privilege to the conduct of litigation. They recognise that in the complex world in which we live there are a multitude of reasons why individuals, whether humble or powerful, or corporations, whether large or small, may need to seek the advice or assistance of lawyers in connection with their affairs; they recognise that the seeking and giving of thisadvice so that the clients may achieve an orderly arrangementof their affairs is strongly in the public interest; they recognisethat in order for the advice to bring about that desirable result itis essential that the full and complete facts are placed before thelawyers who are to give it; and they recognise that unless theclients can be assured that what they tell their lawyers will notbe disclosed by the lawyers without their (the clients') consent,there will be cases in which the requisite candour will beabsent. It is obviously true that in very many cases clients would have no inhibitions in providing their lawyers with all the facts and information the lawyers might need whether or not there were the absolute assurance of non-disclosure that the present law of privilege provides. But the dicta to which I have referred all have in common the idea that it is necessary in oursociety, a society in which the restraining and controlling framework is built upon a belief in the rule of law, thatcommunications between clients and lawyers, whereby the clients are hoping for the assistance of the lawyers' legal skills in the management of their (the clients') affairs, should besecure against the possibility of any scrutiny from others,whether the police, the executive, business competitors,inquisitive busybodies or anyone else (see also paras 15.8 to 15.10 of Zuckerman's Civil Procedure (2003) where the author refers to the rationale underlying legal advice privilege as "the rule of law rationale"). I, for my part, subscribe to this idea. It justifies, in my opinion, the retention of legal advice privilege in our law, notwithstanding that as a result cases may sometimes have to be decided in ignorance of relevant probative material..”
“29. There is room for argument whether, by allowing Prudential’s appeal, we would be extending the breadth of LAP or would simply be identifying the breadth of LAP. On the former view we would be changing the common law; on the latter view, we would be declaring what the common law always has been. I do not think it necessary to address this issue, as the important point for present purposes is that it isuniversally believed that LAP only applies to communicationsin connection with advice given by members of the legalprofession, which, in modern English and Welsh terms,includes members of the Bar, the Law Society, and theChartered Institute of Legal Executives (CILEX) (and, byextension, foreign lawyers). That is plain from a number of sources, which speak with a consistent voice.”
“45. Such principled justification as there is for the restrictionof LAP to lawyers seems to me to be further undermined by theextension of LAP which the court has approved to all foreignlawyers, without (it would seem) regard to their particularnational standards, regulations or rules with regard to privilege. That extension appears to originate from Lawrence v Campbell (1859) 4 Drew 485 (Sir Richard Kindersley V-C), and was approved and applied in Macfarlan v Rolt (1872) LR 14 Eq 580 (Sir John Wickens V-C), In re Duncan, decd[1968] P 306 (Ormrod J), and Great Atlantic Insurance Co v Home Insurance Co[1981] 1 WLR 529 , 536 (Templeman LJ)…”
“…none of the statements of principle in the case law haveidentified the relationship of lawyers with the court or thearrangements for the admission or discipline of lawyers as arelevant factor. If it had been, then the English courts would not have recognised a privilege for legal advice which was wholly independent of any forensic proceedings, actual or prospective. Nor would they have recognised the privilege attaching to theadvice of foreign lawyers. There is no suggestion in any of thecases about foreign legal advice of any interest on the part ofthe English court in the standards of their training or discipline,and they are certainly not amenable to the supervision ofEnglish judges. Nor could Sir John Romilly have recognised the privilege attaching to the advice of a person whom the client believed to be a solicitor and professionally consulted on that basis, but who in fact was not: see Calley v Richards (1854) 19 Beav 401. Third, the legal basis of the privilege was worked out by the courts at a time when most claims for legal advice privilege concerned communications with solicitors and attorneys, whose professional standards were then notoriously low. Many of them were not enrolled and the court’s supervision of their professional practices was nominal or nonexistent. This was particularly true of attorneys, who practised in the common law courts and whom Sir Vicary Gibbs, Chief Justice of Common Pleas from 1813, once memorably described as “the growling jackals and predatory pilot fish of the law”: see The Oxford History of the Laws of England, xi (2010), 1110 (the whole of this chapter repays reading). The high modern standing of solicitors (as all of them were called after 1873) was due very largely to the work of the Law Society, which was founded after 1825 to address this perception, and which together with its provincial affiliates gradually transformed the profession in the course of the nineteenth century.”
“It is none the less understandable why LAP was so extended: the extension was, I suspect, based on fairness, comity andconvenience.While that extension does rather undermine muchof the principled justification for LAP being confined to caseswhere the advice is given by professional lawyers, it is consistent with the argument that the court should restrict LAP to its currently understood bounds for reasons of practicality and certainty.”
“…By their answer they state that they have been admitted assolicitors before the Courts of law in Scotland, that they arepractising in London as Scotch solicitors and law agents, andthat the letters were written and received by them confidentiallyand in their professional capacity. Here, then, is a very distinct statement, which would, if these gentlemen had been English solicitors, have entitled them to protection from production. These letters consist of two series—those written by these gentlemen to Mr. Campbell, and those written by Mr. Campbell to them; and I think that there can be no question but that they should not be produced. They are professional communicationsmade as between a solicitor—though a Scotch solicitor—andhis client, Mr. Campbell. The question is new in specie, but the cases have settled the general principle, and I think that principle must apply to this case. The general principle isfounded upon this, that the exigencies of mankind require thatin matters of business, which may lead to litigation, men shouldbe enabled to communicate freely with their professionaladvisers, and their communications should be held confidential and sacred, and that no one should have a right to their production. The reason is that the exigencies of mankind require it; and no mischief arises from it, as it does not in any way break in upon the principle that Courts of Equity may [490] require the production of all documents which will tend to prove the case before them…”
“an issue as to the extent of the privilege covering communications between the plaintiff and his English solicitors and various foreign lawyers acting on his behalf in the relation of lawyer and client.”
“The basis on which this head of privilege rests was stated byLord Cottenham L.C. in Reid v. Langlois in these words: "... the object is to protect the party who wishes to take theadvice of professional men, and he would be prevented from taking such advice if there was the hazard of having it revealed on entering into a contest with an opponent." In Anderson v. Bank of British Columbia, Jessel M.R. adopted this statement of principle with the gloss that by "professional men" Lord Cottenham meant members of the legal profession, a phrase which he uses interchangeably with "professional lawyers." There is nothing in these judgments to suggest that either judge intended to limit the rule to legal advisers whose names appear on the roll of Solicitors to the Supreme Court or who are members of the English bar. The basis of the privilegeis just as apt to cover foreign legal advisers as English lawyers,provided only that the relationship of lawyer and client subsistsbetween them.”
“123. It is consistent with the view that I have expressed that the courts have in recent times expanded the categories of lawyer whose advice may attract privilege, in particular to cover salaried legal advisers and foreign lawyers. This development has been the natural consequence of the functional character of the test combined with the law’s pragmatic willingness to recognise the changing patterns of professional life. The privilege attaching to the advice of salaried legal advisers was first recognised judicially by the Court of Appeal in Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No 2)[1972] 2 QB 102 . Lord Denning MR, at p 129, justified the result primarily on the ground that, although the communications of a corporation with an in-house legal adviser were internal to the corporation, nevertheless the adviser was performing the same function as the lawyer in independent practice. Relevant communications with foreignlawyers have for many years attracted the same privilege forthe same reason. In Lawrence v Campbell (1859) 4 Drew 485 privilege was claimed in English litigation for communications between a Scottish client and a Scottish solicitor practising in London. Sir Richard Kindersley V-C held (at p 491) that “the same principle that would justify an Englishman consulting his English solicitor would justify a Scotchman consulting a Scotch solicitor.”
"[Counsel for the defendant] cited no authority in support of it and, in my judgment, it is inconsistent with the tenor of the judgment of Sir Richard Kindersley V.-C. in Lawrence v. Campbell… The mere fact that the Scots lawyers were practising in England was clearly not a relevant consideration and the vice-chancellor expressly rejected the suggestion that the Scots law of privilege had any bearing on his decision. The essence of the judgment is that privilege attaches to communications between professional legal advisers and their clients…"
“it seems to me that the position is that it is impossible to uphold an utterly wide test of privilege extending to any communication by the litigant with any person from whom he has sought, or happens to have received, advice on any point of law relevant to the litigation in question. It is far too wide, and the courts have never adopted such a wide approach. Thenarrow approach of the common law is to recognise certaintypes of person as being legal advisers, communications withwhom on matters of law are privileged. Besides barristers and solicitors, this, it seems from the old authorities, originally also included scriveners and doctors of the civil law practising in Doctors' Commons and Proctors in the Ecclesiastical Courts - whether or not they were solicitors. But those were regarded asvarieties of lawyer. I do not regard the patent agent as a variety of lawyer, and I take the view that the patent agent is not within the common law privilege.”
“…Given that the general rule is that legal professionalprivilege does not attach to communications between a lawyerand his client unless the former is qualified to practise, it seems to me that the burden is on the Defendants to show that they continued to believe that Mr Simms held a practising certificate as a solicitor at the time when the Eagle documents came into existence and that in the absence of such evidence the claim to legal professional privilege in the documents cannot be maintained…”
“Foreign lawyers: Communications with foreign lawyers also attract legal professional privilege, even where the lawyer advises on matters of English law. The rationale for this recognition has never been fully explained in a decided case, but Lord Neuberger has speculated that it is based on fairness, comity, and convenience. If an adviser is a lawyer admitted in aforeign country it is unnecessary to require evidence aboutlegal and ethical practices and controls by foreign courts, though the position may be different if the circumstances otherwise raise questions as to the position of the lawyer, such as whether he is a lawyer at all. ”
“…Many barristers and solicitors are employed as legal advisers, whole time, by a single employer. Sometimes the employer is a great commercial concern. At other times it is a government department or a local authority. It may even be the government itself, like the Treasury Solicitor and his staff. In every case these legal advisers do legal work for their employer and for no one else. They are paid, not by fees for each piece of work, but by a fixed annual salary. They are, no doubt, servants or agents of the employer. For that reason Forbes J. thought they were in a different position from other legal advisers who are in private practice. I do not think this is correct. They are regarded by the law as in every respect in the same position as those who practise on their own account. The only difference is that they act for one client only, and not for several clients. They must uphold the same standards of honour and ofetiquette. They are subject to the same duties to their client andto the court. They must respect the same confidences. They and their clients have the same privileges.”
“However, it must be taken into account that to the best of my knowledge, the workers of most international law firms operating in Russia are hired under employment contracts and do not hold advocate status.”
“communications passing between a client and its lawyers,acting in their professional capacity, in connection with theprovision of legal advice”
“Tatneft should not now escape …properly explaining how it has applied privilege in the case of such in-house employees.”
“holding a law degree is not sufficient to constitute someone a professional legal practitioner, otherwise the principles set out in Dadourian are wrong.”
“It seems that members of Tatneft’s in-house “legal departments” in fact had an extensive role in matters relevant to the issues in dispute, including contemporaneously communicating with S-K and including apparently takingquasi-commercial decisions on behalf of Tatneft.”
“that the Claimant provides specific disclosure and information relating to Tatneft’s compliance with its disclosure obligations in these proceedings”