Whilst in itself the largest virtual trial to take place in the English High Court, one ground-breaking ruling from PJSC Tatneft vs Bogolyubov and others (2020) EWHC 2437 (Comm) has much wider implications upon legal professional privilege for foreign lawyers acting as in-house counsel overseas. Mrs Justice Moulder held that regardless of a jurisdiction’s professional obligations or regulations, legal advice privilege is accessible to foreign in-house lawyers. The ruling held that so long as in-house lawyers are functioning in a legal capacity, even if they are not professionally qualified or regulated, their advice remains privileged.
This ruling emerged from years of litigation, culminating in a virtual trial spanning twelve weeks over multiple jurisdictions with Sherrards successfully acting for Pavel Ovcharenko, resisting a $300m claim brought by Tatneft. In the run up to the trial an application was brought before the Court concerning the specific disclosure of documents and communications between employees and officers of Tatneft and the oil company’s in-house legal team. In Russia, in common with many foreign jurisdictions, many in-house lawyers and lawyers in private practice alike are not officially advocates or necessarily regulated by their bar association, as such. Accordingly, this was used as a basis to pursue an application for specific disclosure, arguing that the communications with the in-house legal team were not privileged under English law, on the basis of an argument that the most relatable notion of English legal professional privilege in Russian law is that of ‘advocates’ secrecy’, a notion not applied to lawyers who are not advocates. Submissions were made that for the work of a foreign lawyer to receive privileged status, the lawyer had to be appropriately qualified, meaning that the Court would have to examine the lawyer’s status in addition to their function.
Mrs Justice Moulder ruled on the matter in line with the Claimants, Tatneft. Moulder J dismissed the notion that foreign lawyers should be appropriately qualified or regulated as professional lawyers. She held that as long as a foreign lawyer was acting in the capacity or function of a lawyer, this was the only requirement necessary to apply legal advice privilege to their work. In essence, Moulder J held that the English High Court would not question the status of foreign lawyers with regards to privilege, whether in-house or otherwise. Instead, Moulder J’s ruling clarified the position that the work of in-house or private lawyers in jurisdictions other than England and Wales is protected by legal privilege.
In her ruling, Moulder J referred to Lord Neuberger’s finding in Prudential, (R (on the application of Prudential plc and another) v Special Commissioner of Income Tax  USKSC) that the ‘extension of legal advice privilege which the Court has approved to all foreign lawyers, without regard to their particular national standards or rules with regard to privilege’. Moulder J held that even if foreign in-house lawyers were paid employees and unregulated it was not for the English Court to evaluate whether a foreign lawyer’s registration or regulation is comparable to that of an English-qualified lawyer. Moulder J also recognised the impracticalities of siding with the applicant: notably if the position had been accepted by Moulder J, it would have ostracised a significant number of lawyers working in companies or banks in Russia (and, indeed, in the rest of the world) who in regulatory terms hold the status of employee and not advocate.
The significance of this ruling is not to be underestimated. Whilst it was already established that legal advice from English solicitors, barristers and crucially foreign lawyers was privileged, there was less clarity surrounding whether it was imperative that a foreign lawyer met a local standard of qualification or regulation. This issue has been especially pertinent to foreign in-house lawyers in jurisdictions where they were unable to be part of the local Bar and in jurisdictions where local Bar admission was not obligatory for private legal practice. This decision clarifies that the advice of foreign lawyers and foreign in-house lawyers is protected by privilege in the English Courts so long as said lawyers are acting in a legal capacity, regardless of their regulatory status.
The full Judgment in PJSC Tatneft vs Bogolyubov and others (2020) EWHC 2437 (Comm) can be found here:
For further information on the full Trial in PJSC Tatneft vs Bogolyubov and others (2021) EWHC 411 (Comm) visit