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Treatment of legally privileged information in competition proceedings – NAZZINI – November 2018 OECD discussion

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This presentation by Renato NAZZINI, Professor of Law & Director of Research in Construction Law, King's College London, was made during the discussion “Treatment of legally privileged information in competition proceedings” held at the 128th meeting of the OECD Working Party No. 3 on Co-operation and Enforcement on 26 November 2018. More papers and presentations on the topic can be found out at oe.cd/tlp.

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Treatment of legally privileged information in competition proceedings – NAZZINI – November 2018 OECD discussion

  1. 1. Legal Professional Privilege: Retrospective and Prospective
  2. 2. BACK TO BASICS © Professor Renato Nazzini, 2018 - all rights reserved
  3. 3. Fundamentals • Three Rivers (No 6) [2004] 3 WLR 1274 (Lord Scott): it is necessary in our society, a society in which the restraining and controlling framework is built upon a belief in the rule of law, that communications 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 be secure against the possibility of any scrutiny from others, whether the police, the executive, business competitors, inquisitive busybodies or anyone else • Lord Hoffmann described legal professional privilege in R (on the application of Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax [2003] 1 AC 563 as “a fundamental human right long established in the common law” • So legal professional privilege at common law is a fundamental right grounded in public policy
  4. 4. No balancing act • R v Derby Magistrates Court Ex p B [1996] 1 AC 487: could a court order disclosure of legally privileged documents concerning legal advice given to A that could provide B with a defence to a charge of murder? No, said the House of Lords.Lord Taylor CJ: “The principle that runs through all [the authorities] is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests”
  5. 5. THE POSITION OF IN HOUSE LAWYERS © Professor Renato Nazzini, 2018 - all rights reserved
  6. 6. Difference between in house and private practice lawyers © Professor Renato Nazzini, 2018 - all rights reserved • Alfred Crompton Amusement Machines Ltd v Customs & Excise Comms (No 2) [1972] 2 QB 102 (Lord Denning MR) [Employed lawyers] 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 of etiquette. They are subject to the same duties to their client and to the court. They must respect the same confidences. They and their clients have the same privileges 6
  7. 7. Distinction between legal advice and business communications © Professor Renato Nazzini, 2018 - all rights reserved I speak, of course, of their communications in the capacity of legal advisers. It does sometimes happen that such a legal adviser does work for his employer in another capacity, perhaps of an executive nature. Their communications in that capacity would not be the subject of legal professional privilege. So the legal adviser must be scrupulous to make the distinction. Being a servant or agent too, he may be under more pressure from his client. So he must be careful to resist it. He must be as independent in the doing of right as any other legal adviser 7
  8. 8. Risk of abuse © Professor Renato Nazzini, 2018 - all rights reserved It is true, as the Law Reform Committee said in their report in 1967 on Privilege in Civil Procedure (Cmd. 3472) that the "system is susceptible to abuse," but I have never known it abused. So much so that I do not think the law should be changed in the way that Forbes J. would have it. There is a safeguard against abuse. It is ready to hand. If there is any doubt as to the propriety or validity of a claim for privilege, the master or the judge should without hesitation inspect the documents himself so as to see if the claim is well-founded, or not 8
  9. 9. GOVERNING LAW © Professor Renato Nazzini, 2018 - all rights reserved
  10. 10. Which law applies? • Lex fori, applied in England and Wales and in the EU under the AM&S and Akzo approach • Law with the closest connection with the instructions – e.g. the “touch base” approach applied by federal courts in the US: Golden Trade SrL v Lee Apparel Co, 143 FRD 514, 520 (SDNY 1992); Gucci America, Inc v Guess?, Inc, 271 FRD 58 (SDNY 2010) – the “most significant relationship” test applied by certain state courts in the US: Ford Motor Co v Leggat 904 S.W.2d 643, 647 (Tex 1995)
  11. 11. Benefits of lex fori • Legal certainty • Equal treatment of parties • Expression of the public policy of the forum, including its fundamental rights
  12. 12. Nationality of lawyer • Re Duncan [1968] P 306: – does English law privilege protect communications between a client and his foreign lawyers that would not be protected under foreign law? • Yes, because “the object is to protect the party who wishes to bake the advice 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”: Reid v Langlois (1849) 1 Mac & G 627 (Lord Cottenham LC) • “The basis of the privilege is just as apt to cover foreign legal advisers as English lawyers, provided only that the relationship of lawyer and client subsists between them. Any other conclusion would lead to an impossible position for if this court were required to investigate the position of such communications in foreign law it must first determine the foreign law, but what law governs the relationship of English client and foreign lawyer, at any rate, when no proceedings are in contemplation? There is no forum and therefore no lex fori. The nationality of the foreign lawyer is as irrelevant as his address for this purpose” Re Duncan (Ormrod J)
  13. 13. Scope of the privilege • Re RBS (Rights Issue Litigation) [2016] EWHC 3161 (Ch): whether interview notes taken by lawyers in the US had to be disclosed in England, where they were not privileged, notwithstanding they were privileged in the US • RBS put forward an argument that the “law of the place with which the engagement or instructions, pursuant to which the documents came into existence or the communications arose, have their closest connection” should apply • Lex fori rule applies • Its application does not depend on whether it would result in protecting documents that would not be protected abroad or denying privilege to document that would be privileged abroad. Irrational to have a rule for the one case and another in the other • Lex fori applies not because the privilege is “procedural” but because it is a matter of the public policy of the forum
  14. 14. Residual discretion • However, there may be circumstances in which a court should still exclude evidence that, while not protected under the lex fori, would be privileged under a law that the parties could reasonably have expected to apply, if not to exclude the evidence would render the proceedings unfair – US federal courts: Astra Aktibolag v Andrx Pharms 208 FRD 92 (SDNY 2002): ordering disclosure of Korean documents that did not touch base with US would be contrary to the public policy of the forum as the documents would be protected under US law and the reason why they were not privileged under Korean law was that Korean procedural did not have US-style discovery – English courts: “ … the discretion is a salutary one, not least in the context of a case where legitimate expectations may also need, in all fairness, to be taken into account in striking a balance”: Hildyard J in Re RBS, para 182 – however, mere fact that the documents were privileged in the US but not in England was not sufficient to exercise the discretion
  15. 15. TOWARDS AN INTERNATIONAL STANDARD? © Professor Renato Nazzini, 2018 - all rights reserved
  16. 16. Some (modest) suggestions for an international standard © Professor Renato Nazzini, 2018 - all rights reserved • Lex fori applies • Necessary and sufficient requirement that adviser be a lawyer under the rules of his own jurisdiction – lex fori cannot deprive a lawyer of his professional status and capacity - this should apply to employed lawyers as well as to, e.g., government lawyers, seconded private practice lawyers, etc. • Nationality of lawyer irrelevant • Effective judicial procedure to review and exclude evidence protected by the privilege • Scope of privilege determined by lex fori but … • ... residual discretion to exclude evidence if not to do so would render the proceedings unfair 16

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