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PJSC Tatneft v Bogolyubov and Legal Professional Privilege in English Law

In the recent case of PJSC Tatneft v Bogolyubov & Ors [2020] EWHC 2437 (Comm) the English Commercial Court held that legal advice privilege applies to communications between clients and their in-house lawyers in foreign jurisdictions regardless of the status of the lawyer in that jurisdiction. 

The dispute arose out of a Ukrainian oil refinery’s refusal to pay the claimant State-owned oil company for the delivery of oil in 2007. The case concerned the claimant’s attempt to prevent the defendant’s inspection of communications with its internal legal department.

A brief introduction to privilege in English law

It is a fundamental principle of English law that communications between an individual and their lawyer must not be revealed without the individual’s consent. Privilege is a concept that protects this fundamental principle by enabling a party to withhold certain communications and evidence from their opposition and the court. There are two types of legal professional privilege (‘LPP’): legal advice privilege and litigation privilege.

The following principles are applicable to both types of LPP:


For the privilege to be claimed the evidence in question must be confidential. For example, where a document has been made available to the general public, privilege can no longer be claimed. 

Legal profession

As explained above the underlying purpose of the privilege is to enable individuals to consult legal professionals in confidence, as such, all legal professionals are covered by the doctrine. However, the doctrine does not apply to other professionals giving legal advice, for example, tax law advice given by an accountant. Difficulties may arise where in-house lawyers have both legal and non-legal responsibilities. Communications relating to an in-house lawyer’s non-legal responsibilities are unlikely to be covered by privilege so clients should ensure that in-house lawyers clearly separate their roles. We will return to this principle shortly as it became central to the Tatneft case.

The privilege belongs to the client

LPP belongs to the client, unless and until the client waives privilege their lawyer is under a professional obligation to assert it. Where the client dies, is made bankrupt or, if a company is dissolved, privilege will still apply until it is waived by someone with the legal right to do so.


Widely construed to include communications between the relevant parties (e.g. emails, phone calls, letters, etc.) but also records and evidence of these communications (e.g. a note of a phone call or meeting).

Legal professional privilege in Tatneft

The case  PJSC Tatneft v Bogolyubov & Ors concerned legal advice privilege which protects the fundamental right of a client to be able to consult their lawyer in confidence. It applies to confidential communications between a client and their lawyer for the dominant purpose of giving or receiving legal advice.

‘Client’ is narrowly defined, which presents few difficulties where the client is an individual. However, the narrow definition may cause problems where the client is a business. In this context, privilege will only apply to those individuals who are charged with obtaining and receiving legal advice. This narrow definition means that documents prepared by other employees who do not fit this description, even if sent directly to lawyers, will not be privileged. It was clear in the Tatneft case that the client requirement was met on the facts.

In Tatneft the dominant purpose of each communication consisted of giving or receiving legal advice. Legal advice is broadly defined and it covers the vast majority of work done by lawyers from telling a client the law to applying the law to the client’s circumstances. Put simply, the important question is whether the dominant purpose of the communication for the lawyer consists in the provision of legal advice.

Confidentiality constitutes a crucial element of legal advice privilege. However, the court recognises that communications between a lawyer and client may be used by the client. Therefore, privilege will not be lost where advice is communicated by the client within their company (for example to the board of directors).

When sharing privileged information internally clients should ensure that they make it clear that the documents are confidential and privileged, that providing the documents does not constitute a waiver of privilege and that the documents are held in confidence.

The arguments in Tatneft

The second defendant claimed there was a difference between an internal or in-house lawyer and a Russian advocate. An advocate is an independent legal advisor called to the Russian Bar. As the claimant’s internal lawyers are not advocates the defendant argued that ‘advocate secrecy’ (the Russian equivalent of legal professional privilege) does not apply to the claimant’s communications with its internal legal department and therefore the defendant was entitled to inspect the communications.

The claimant accepted the defendant’s analysis of the Russian legal position but claimed that it was irrelevant because the proceedings were held in England and therefore subject to English procedural rules. However, the second defendant argued that only communications with ‘appropriately qualified’ foreign lawyers were subject to LAP.

The decision in Tatneft

The English court found that clients should be able to seek assistance from lawyers in the knowledge that these communications will not be disclosed without their consent. It held that a ‘functional’ approach which looks at the reasons for the communication was more consistent with this underlying rationale. Therefore, LAP extends to communications with foreign lawyers regardless of their status in that jurisdiction.

What about litigation privilege?

This type of LPP enables a litigant or potential litigant to prepare for litigation without the fear that documents created for that purpose will have to be disclosed to the other side. It applies where (i) litigation is in progress or reasonably contemplated; (ii) the communication is made for the sole or dominant purpose of the conduct of the litigation; and (iii) the litigation is adversarial.

Litigation privilege extends beyond communication between a lawyer and their client to include communication between lawyers, their clients and third parties.  Litigation extends to all adversarial proceedings where judicial functions are exercised by a court, tribunal or panel, such as High Court proceedings and international arbitration.

Where the proceedings are merely investigative or inquisitorial it is unlikely that litigation privilege can arise. There is still some uncertainty regarding the point at which a regulatory investigation becomes “adversarial” but recent cases suggest that the line is becoming more blurred which increases the likelihood that litigation privilege can be successfully asserted.

There must be a real likelihood of litigation rather than a mere possibility but the chance of litigation does not need to be greater than 50%. It is clear that a general apprehension or belief that at some point litigation may commence does not suffice.  The party asserting privilege has to show that the communications aimed dominantly to seek or obtain evidence or information to be used in or in connection with anticipated or ongoing proceedings.  The court will assess the dominant purpose objectively, taking a realistic and commercial view based on statements within the document and evidence put before the court that the document was prepared for the purpose of litigation. However, communications prepared to discuss settlement options may not be protected by the privilege if the communications are purely commercial.

Litigation privilege was not mentioned in the Tatneft judgment, presumably because the communications between the claimant and its in-house legal team took place before litigation was contemplated.

Concluding remarks

This judgment is welcomed as it gives clients in foreign jurisdictions much-needed comfort regarding the confidentiality of their communications with internal legal departments. For LAP to attach to these communications clients must ensure that the lawyers in its legal department are acting in the capacity or function of a lawyer in connection with the provision of legal advice.

This decision also means that when considering an application for specific disclosure of such communication the court does not need to express its view on the qualification or regulation of foreign lawyers and as such expert testimony on this issue will no longer be required which should reduce costs. It could be argued that this decision dilutes the distinction between litigation and legal advice privilege by unduly increasing the number of parties who meet the definition of ‘lawyer’. This criticism is unwarranted as it is a fundamental principle of English law that a client’s discussions with their lawyers remain confidential.

James Collins, Yuri Botiuk, Ben Wells
Partners at CANDEY Law Firm, London

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