Legal professional privilege and the EC Insolvency Regulation

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The defence of privilege to an English liquidator’s application for the production of documents under sections 234 and 236 IA 1986 is to be decided on the basis of English law, not the law of the jurisdiction of the respondents.

This is irrespective of the imposition of potential criminal or regulatory liability under that foreign law, albeit this will be a discretionary factor for the court to take into account.

A Luxembourg company that had shifted its COMI to England was placed into administration and subsequently liquidation in England. An application was made by the liquidators to obtain documents ‘belonging to’ (s234 IA 1986) and ‘relating to’ (s236 IA 1986) the company from the company’s previous law firm…

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