"A question has been raised as to whether the privilege in the present case is an English or a Scotch privilege; but sitting in an English Court, I can only apply the English rule as to privilege, and I think that the English rule as to privilege applies to a Scotch solicitor and law agent practising in London, and therefore the letters in question are privileged from production."
"… whether described as a rule, a convention or practice, it is the approach of the English court to apply the lex fori to issues of privilege, and has been so since the mid-19th century."
"… that any solution but the application of the lex fori requires determination of the application and content of foreign law, and even the identification of the relevant foreign law may be difficult according to the stage and context in which the issue arises. Those difficulties are compounded where, in multi- jurisdictional cases involving several parties, there is the potential for a variety of different putatively applicable laws, and the prospect of having to determine them at an interlocutory stage, with cross-examination of experts if there is a disagreement."
"However, when the question arises in English proceedings, the rule is that the question whether or not a document is privileged is to be determined by English law; the fact that under a foreign law the document is not privileged or that the privilege that existed is deemed to have been waived is irrelevant. This is how the principle is stated in Dicey, Morris & Collins, The Conflict of Laws, 15th ed., para 7-022. The proposition is based on the decision of the Court of Appeal in Bourns Inc v Raychem Corp[1999] 3 All ER 154 at 167h-168b, Aldous LJ." [Emphasis supplied]
"I do not think that if the draft Complaint is privileged under English law it ceases to be privileged on the ground that it would not be privileged from production in the New York proceedings. This is because, as stated above, the question whether or not a document is privileged is to be determined by English law, for reasons which are partly practical (see Bourns Inc v Raychem Corp, ibid). The position might be different if the New York courts had themselves decided that the draft Complaint was not privileged from production, and it had entered into the public domain, because in those circumstances confidentiality would have been lost. However, that is not the case here." [Emphasis supplied]
"Privilege is … justified on the ground of public interest. It involves a right to keep confidential the document and the information in it. The fact that under foreign law the document is not privileged or that the privilege that existed is deemed to have been waived is irrelevant. The crucial consideration is whether the document and its information remain confidential in the sense that it is not properly available for use. If it is, then privilege in this country can be claimed and that claim, if properly made, will be enforced. In the present case the documents and the information in them remain confidential in the sense that I have used that word. It follows that the documents remain privileged under English law, whether or not the right to privilege from production in a foreign country is deemed not to exist or to have been waived." [Emphasis supplied]
"…the applicable law to determine whether there is an obligation of confidence is the law most closely related to the facts in question, which is to say, in this case, unquestionably Thai law."
"… the lex fori has been adopted because … it is an aspect of English public policy …: the balance to be struck between disclosure and privilege in the course of a trial is always a difficult one, and ultimately is a public policy decision ."
"Considerations of public interest justify giving the courts of the Member States the possibility, in exceptional circumstances, of applying exceptions based on public policy and overriding mandatory provisions." and from Article 26, which provides: "
"… Under the civil procedure of the High Court the court does not, in general, exercise any control over the manner in which a party obtains the evidence which he needs to support his case. … the basic principle underlying the preparation and presentation of a party's case in the High Court in England is that it is for that party to obtain and present the evidence which he needs by his own means, provided always that such means are lawful in the country in which they are used."
"in what circumstances (if any) may the English courts restrain a party to an English action from availing himself of the process of a foreign court for the purpose of obtaining evidence relevant to the English action?" – see page 26E. Their submitted answer was summarised at 26H-27A as being: "… Further, a party may use the facilities of the courts of a friendly foreign state if that state is willing for them so to do. The defendants concede that there are limits to this principle. Thus, it is inapplicable where it would be unconscionable for a party to obtain discovery, for example, of documents which in this country are subject to professional privilege ." [Emphasis supplied]
"The position on the authorities is this. First, it is clear that the jurisdiction to restrain the use of privileged documents is based on the equitable jurisdiction to restrain breach of confidence. The citation of the cases on the duty of confidentiality of employees makes it plain that what the Court of Appeal was doing in Lord Ashburton v Pape was applying the law of confidentiality in order to prevent disclosure of documents which would otherwise have been privileged, and were and remained confidential. Second, after a privileged document has been seen by the opposing party, the court may intervene by way of injunction in exercise of the equitable jurisdiction if the circumstances warrant such intervention on equitable grounds. Third, if the party in whose hands the document has come (or his solicitor) either (a) has procured inspection of the document by fraud or (b) on inspection, realises that he has been permitted to see the document only by reason of an obvious mistake, the court has the power to intervene by the grant of an injunction in exercise of the equitable jurisdiction. Fourth, in such cases the court should ordinarily intervene, unless the case is one where the injunction can properly be refused on the general principles affecting the grant of a discretionary remedy, eg on the ground of delay."
"There is nothing wrong in using the properly available legal systems or foreign proceedings in which you are involved to obtain documents, whether or not those documents might or might not also benefit other proceedings."
"Provided the lawyers and clients obey the relevant restrictions that are imposed on the documents when they are produced, then there is no problem, and never has been, in deploying information or evidence obtained in one set of proceedings in another …"