Last month, in a controversial judgment, the EU Court of First Instance refused to recognise legal privilege protection regarding communications between in-house lawyers and their clients.

Traditionally, written communications between lawyer and client are afforded the protection of legal privilege in order to allow individuals to openly seek legal advice. Documents protected by legal privilege can therefore generally be withheld from courts or investigators. The scope of this privilege has been the subject of much judicial scrutiny, both within Europe and domestically.

At European level, two qualifications to legal professional privilege apply:

  • The advice must be given by an independent lawyer qualified in the European Union
  • The advice must be made in the interests of the client's right of defence.

Previous cases in Europe have therefore held that communications by in-house lawyers and non-EU qualified lawyers are not recognised for the purposes of legal privilege.

It was hoped that the judgement in this most recent case, Akzo Nobel, would remove this distinction. Instead, the Court of First Instance confirmed Europe's previous position, that where a lawyer is bound to his client by an employment contract the lawyer is not independent and is therefore unable to provide the legal assistance that the client needs.

The impact of this European decision on domestic case law is unclear. The most immediate impact will doubtless be within the remit of competition law, within which this case actually arose. During investigations by the OFT, the British rules of legal privilege apply, whether or not the investigation relates to a UK or an EC infringement. However, if the European Commission leads an investigation within the UK, or asks the OFT to do so for it, the more restrictive European rules may apply.

In its judgment, the Court of First Instance also made it clear that merely discussing a document with an external lawyer is not sufficient to confer legal privilege status. It is essential that such communications are made for the purposes of seeking legal advice. Therefore, simply copying an external lawyer into an email or adding them to the circulation list for a document is unlikely to be sufficient to attract legal privilege. Additionally, documents that have been put together by an in-house lawyer, with assistance by an external lawyer, may not be afforded the protection of legal privilege.

While the impact of this decision outside the context of European competition law remains unclear, the existence of this judgment will doubtless be considered in future, domestic, proceedings regarding the scope of legal professional privilege.