Protecting your Business Documents – Privilege after Akzo Nobel

The long awaited decision of the ECJ in the Akzo Nobel case has been handed down, and to no-one’s great surprise, the Court has held that legal advice privilege will not apply to communications between in-house lawyers and their internal clients, at least in the context of competition investigations by the Commission.

This decision (which largely adopts the reasoning set out in the earlier opinion of the Court’s Advocate-General Kokott in the same case) maintains the distinction made by the ECJ in earlier cases between in-house lawyers and those in private practice, on the basis of the perceived lack of independence of lawyers who have a direct employment relationship with their employer.

While in-house lawyers may well feel somewhat slighted by the ECJ’s suggestion that their independence is compromised by their employee status, private practice lawyers are equally struggling with the ECJ’s suggestion in the Akzo judgment that their position enables them to “ignore the commercial strategies” pursued by their clients – not something which many lawyers in private practice would expect to do on regular basis and remain instructed.

Although the Akzo decision is an easy one to criticise, its overall impact should probably not be over-stated, since it is (for now, at least) confined to competition investigations by the Commission. That said, the English Courts have in recent years sought to police the scope of legal privilege, and pitfalls exist for the unwary in this area.

Bevan Brittan has for some time offered bespoke training to clients on the best ways to protect their business documents, which includes looking in detail at the issues facing clients in their dealings with the growing list of regulators and other bodies with investigatory powers. The training is tailored to the specific needs and interests of each client, and is aimed at providing a “refresher” to in-house legal teams on recent developments in English and European law, but also as a practical Q&A session for lawyers, HR specialists, risk and compliance teams, and anyone whose work can give rise to issues of confidentiality and privilege in its various forms.

Training session

Bevan Brittan has created a training session designed to keep you up-to-date on recent developments in the field of privilege. Aimed at members of in-house legal teams as well as non legally-qualified colleagues, such as HR specialists and members of compliance and risk teams, whose work can give rise to issues of privilege in its various forms.

The session begins with a presentation on the key points to consider when privilege issues arise, which touches on recent case law developments and acts as a recap of the requirements of a successful claim to privilege.

Following the presentation, the main focus of the session is a workshop discussion of a number of hypothetical scenarios which are tailored to be relevant to the organisation's needs and areas of particular interest. The presentation and discussion scenarios typically cover:

• The types of privilege available under English law
• Latest developments in the field of legal advice privilege, litigation privilege and without prejudice privilege
• The difficulties caused by the courts’ decision to narrow the scope of legal advice privilege, and how these can be dealt with
• How to protect business documents within organisations, while controlling legal spend
• Privilege and regulators – dealing with the FSA, Pensions Ombudsman and others
• International aspects of privilege
• Protecting commercially confidential and business-sensitive documents

The session is accompanied by a detailed set of reference notes, designed to be a user-friendly resource for participants to retain.

If you would like an initial meeting with us (at no cost) to talk through the training course and how we might assist, we would be delighted to meet with you.