The 60 second interview: The privilege gap is narrowing

Ahead of his session at the Managing Risk and Litigation conference, Jenner & Block partner and international arbitration co-chair Charlie Lightfoot talks to The Lawyer about the impact of Brexit on London’s position as a leading international arbitration centre and the changing perceptions around legal privilege.

Is the uncertainty surrounding Brexit impacting London’s position as a leading international arbitration centre? Will Brexit affect litigation in the English courts?

I’m not aware of any impact on London’s position as an international arbitration centre at this point. Of course, it’s very early days. But the reasons why London is an attractive venue for international arbitration – the sophistication of the supervisory courts, the well-developed legal framework, the depth of professional expertise, the infrastructure – should all remain as true after Brexit as before.

Whether one is considering the choice of London as a seat of international commercial arbitration or the choice of the English courts, the decision often goes hand-in-hand with the selection of English law to govern the contract in question. Brexit will not affect the English law of contract, which should remain a strong export and a strong attraction of London.

The question of the enforceability of English judgments throughout the EU is a potential problem but, irrespective of the broader Brexit outcome, I expect a solution to be reached that preserves the ready enforcement of English judgments on the continent and vice versa.

The real question mark is over the broader impact of Brexit on London as an international commercial centre. If London loses ground to other cities, with a consequential drain on talent and investment, that would be detrimental to London’s position as a legal centre in the long term.

Legal privilege has been a major discussion topic for 2017 – have recent cases confirmed the narrow view of privilege in the UK courts?

In short, yes. The RBS Rights Issue Litigation case at the end of 2016 confirmed that Three Rivers (No 5) is still the leading case in relation to the definition of a corporate “client” for the purposes of legal advice privilege.

The court rejected the argument that communications between any of the company’s employees and the company’s lawyers are privileged, and reaffirmed that privilege only attaches to communications between the small group of employees authorised to seek and receive legal advice on the company’s behalf and its lawyers.

SFO v ENRC, handed down in May, came to the same conclusion, and also curtailed the circumstances in which litigation privilege might be thought to apply.

In the context of an internal investigation, a company cannot say that criminal litigation is in reasonable contemplation at the stage where it is investigating what happened – until there is knowledge of criminality, there can be no contemplated litigation.

This substantially narrows the ambit of legal privilege in comparison to, say, the position in the US.

Are in-house lawyers no longer able to rely on privilege?

Privilege still exists and in-house lawyers can still rely on it. However, in-house counsel should be careful to ensure that the only people within the company who are communicating with the lawyers are those properly authorised to do so.

This is particularly so where it cannot be said that litigation is in reasonable contemplation; as noted, those circumstances are now considerably narrower than might have been thought at the beginning of 2017.

Tell us two truths and one lie about yourself (in any order)

• For a short time, I played professional cricket (badly).
• I can make from scratch a pretty serviceable tropical fruits pavlova.
• I can recite the entire scripts of The Princess Bride and Predator.

If you hadn’t become a lawyer, what would you have done instead?

An English teacher.