Privilege in competition investigations competition investigations

The contents of this article first appeared in an article in Competition Law Journal.

Introduction

At the outset, and throughout the life of any competition investigation, a number of different privilege considerations need to be addressed. These relate not only to the privilege rules governing the investigation but also those which will apply to any later private actions for damages (which are almost inevitably bound to follow in the event of a finding of an infringement of competition law).

In this article we will examine the English and EU rules on privilege and some of the issues that arise both in the investigation itself and in the subsequent litigation, in particular concerning materials that are likely to be created at the start of a regulatory investigation, such as explanatory memoranda and notes of interviews with employees. However, the laws of other jurisdictions may well become relevant, in particular those of the USA. Although a relatively broad concept of privilege is recognised in the USA, the detail of the approach to privilege in the USA can nonetheless differ significantly from that in England, most notably and relevantly perhaps with regard to the more draconian approach to waiver seen in the USA.

EU Rules

In essence, EU law recognises as privileged from production in a European Commission investigation the legal advice of independent lawyers qualified to practice in the EEA. It does not recognise any privilege in communications between in-house lawyers and their clients, even where those communications are recognised as privileged under English domestic law. In further contrast to the position in England, and perhaps surprisingly given the enormous sums at issue in competition investigations, there is very little case-law at a European level dealing with the question of which communications can be protected from disclosure on the basis of legal professional privilege.

The first case to address whether the concept of legal professional privilege exists under EU law was AM&S Europe Ltd v European Commission (Case C155/79) [1983] QB 878. AM&S resisted the production of certain documents, namely communications with its lawyers, which had been demanded by the European Commission (the Commission) in an investigation carried out under Art 14 of Council Regulation 17/62. The Commission took the position that there was no protection afforded under Regulation 17/62 for such communications and the case came before the Court of Justice (ECJ). In a famous Opinion, subsequently quoted with approval by the House of Lords in Three Rivers DC v Bank of England (No 6), Advocate General Slynn surveyed the privilege rules across the Member States. He described the very different bases of privilege between the common and civil law systems, but noted that there was a common element of protection in all Member States. He recommended that the ECJ adopt a broad protection for the communications of lawyers with their clients.

The ECJ was prepared to accept that some form of protection should be afforded to lawyer/client communications but held that it should be of a more limited scope than that proposed by the Advocate General. It held that the privilege extended to communications between a client and an external independent lawyer qualified to practice in a Member State, provided that the communications were made for the purposes and in the interest of the client’s rights of defence. Subject to the modifications and extensions discussed below, over 30 years later, that remains the clear position under EU law - with absolutely no prospect of modification.

Temporal and subject matter scope

Although privilege was described as extending to communications made for the purposes and in the interests of the client’s rights of defence, the protection can extend to the period prior to the investigation, provided the earlier written communications relate "to the subject matter of that procedure" [AM&S, n 2, above, AG’s Opinion, at para 23]. So, in AM&S, although the Commission investigation began in February 1978, communications from the period 1972 and 1973 were protected from disclosure.

The substantive scope of privilege under EU law is not well articulated. For example, it has not been defined in case-law as a general protection attaching to lawyer/client communications on any subject, as it is under English law. Nor has there been any judicial consideration of whether wider legal advice which goes beyond the subject matter of the procedure will be protected by privilege in a Commission investigation. That could be particularly relevant in a case involving questions as to the strength of an underlying patent or in a case in which a sector regulator has already conducted an investigation. It is submitted that, even under EU law, the position should be that all legal advice properly sought from a suitably qualified lawyer should, of course, be privileged, regardless of whether it extends beyond the subject matter of the dispute. For the ECJ to adopt a different approach would undermine the ability of a person to seek advice from his lawyer, the need to do which, in the words of Advocate General Slynn, underlies the existence of legal professional privilege in civilised societies.

Internal dissemination

Hilti AG v Commission (Case T-30/89A) EU:T:1991:70, [1991] ECR II-1439, [1990] 4 CMLR 602, a decision of the European Court of First Instance (CFI) (now the General Court), extended the protection afforded to lawyer/client communications to internal notes which report the text or content of the original lawyer/client communication. As this is a CFI decision, there is no fuller analysis in an accompanying Advocate General’s Opinion and the short text of the decision provides no discussion or guidance about the extent of this additional protection. Given that, and the European Courts’ restrictive approach to communications with in-house counsel, it would be prudent for in-house counsel, and those advising them, to assume that the protection extends only to bare reports or dissemination of the external advice without any further advice or commentary from in-house counsel.

Independence

The restrictive approach of the ECJ in AM&S, in particular regarding the inability of in-house lawyers to provide privileged advice to their clients, drew much criticism in the years following its decision, particularly as the role of in-house lawyers has expanded since that date. An opportunity for further consideration of the issue arose in the Akzo litigation, which commenced following a dawn raid at a UK subsidiary of Akzo Nobel in 2003. During that dawn raid, Akzo Nobel’s subsidiary, Ackros, resisted disclosure of various communications, including advice from Akzo Nobel’s in-house legal department to its internal clients. As the litigation slowly progressed towards the ECJ, there was a brief moment when it appeared that the Court might be receptive to the concerns raised around the AM&S decision. In an early interim relief decision, the president of the CFI accepted that the advice provided by the in-house lawyer was not privileged according to the decision in AM&S, but went on to suggest that:

"The evidence therefore tends to show that increasingly in the legal orders of the Member States and possibly, as a consequence, in the Community legal order, there is no presumption that the link of employment between a lawyer and an undertaking will always, and as a matter of principle, affect the independence necessary for the effective exercise of the role of collaborating in the administration of justice by the courts if, in addition, the lawyer is bound by strict rules of professional conduct, which where necessary require that he observe the particular duties commensurate with his status."

Akzo Nobel Chemicals v Commission (Cases T-125/03 R and T-253/03 R) EU:T:2003:287, [2003] ECR II-4771, [2004] 4 CMLR 15, at paras 125, 126.

However, when the case came before the ECJ it followed the Opinion of Advocate General Kokott in holding1 that the concept of independence is determined both "positively", that is, by reference to professional ethical obligations, but also "negatively" by the absence of an employment relationship and that, accordingly, advice from in-house counsel, even if the in-house counsel is a member of a Bar or Law Society, is not protected from disclosure as a matter of EU law. The consequence is depressingly clear: save for the possible application of the preparatory materials exception discussed below, EU law does not recognise any privilege against production in respect of communications involving in-house lawyers.

Qualified to practise in a Member State

A further restriction of the decision in AM&S is that the privilege extends only to communications between a client and "any lawyer entitled to practise his profession in one of the Member States, regardless of the Member State in which the client lives" [AM&S, n 2, above, at para 25. In practice, the protection extends to all lawyers qualified in the EEA]. In an era in which global organisations require advice from lawyers from various jurisdictions, it is not difficult to see how this restriction, if enforced in practice by the Commission, could seriously undermine privilege. Even aside from the justness or otherwise of preventing privileged advice being given to a client by an overseas lawyer in respect of particular matters in a European context, it is obvious that a client will require advice from non-European counsel in respect of its exposure in other jurisdictions. To hold that such advice is not privileged from production to the Commission clearly undermines the protection that AM&S afforded to advice relating to "the subject matter of that procedure" [AM&S, n 2, above, at para 23]. Any hopes that the restriction will be significantly relaxed in the future should be tempered by reading Advocate General Kokott’s Opinion in Akzo Nobel. The question did not arise in that case as the internal advice at issue emanated from an in-house lawyer who was a member of the Dutch Bar. Nonetheless, Advocate General Kokott asserted in her 29 April 2010 Opinion that even if legal professional privilege were to be extended to in-house lawyers who were members of a Bar or Law Society within the EEA, "the inclusion, in addition, of lawyers from third countries would not under any circumstances be justified" [Akzo Nobel Chemicals v Commission (Case C-550/07 P), n 8, above (AG Opinion, EU:C:2010:229, at para 189)].

Preparatory materials

One expansion to the scope of privilege to emerge from the Akzo Nobel litigation concerns the status of materials prepared for the instruction of external counsel. The status of those documents was the subject of the CFI decision; as these aspects of the decision were not appealed to the ECJ they represent the current position under EU law. The relevant documents included a typed memo from the general manager of the UK subsidiary which contained information obtained by him in the course of internal discussions with other employees for the purpose of obtaining outside legal advice, as well as a further copy of the same memo with the general manager’s manuscript notes on it detailing the output of his conversation with an external lawyer. In respect of the claim for privilege over this material, the CFI stated that in order for a person to be able to consult a lawyer without constraint and so that the lawyer can effectively perform his role as collaborating in the administration of justice, it can be necessary in certain circumstances for the client to prepare working documents or summaries as a means of gathering information which is useful and essential for the lawyer to understand the context, nature and scope of the facts for which his assistance is sought. The CFI specifically recognised that the preparation of such documents may be particularly necessary in cases involving large amounts of complex information. The CFI concluded that such material could be protected, even if the preparatory documents had not been exchanged with the lawyer or had not been created for the purpose of being sent physically to the lawyer, provided that they were drawn up exclusively for the purpose of seeking legal advice. That is potentially quite a significant category of documents and represents (arguably) a broader protection to preparatory materials than may exist under English law (as will be discussed below). However, it should be noted that the CFI was at pains to point out that this category of protection would not readily be available. It warned that an undertaking seeking to rely on this protection would have to prove that the documents were drawn up with the sole aim of seeking legal advice from a lawyer and that this should be "unambiguously clear" from the content of the documents themselves.

That caution is required before relying on this type of protection is borne out by the result of the CFI’s analysis of the particular documents before it in Akzo Nobel. Despite the fact that (i) the handwritten notes on the copy of the memo referred to a telephone call with an outside lawyer, (ii) the lawyer allegedly prepared an internal note dealing with this and (iii) the general manager of the UK subsidiary faxed further information to the lawyer, the CFI concluded that the memo could plausibly have been prepared for the purpose of seeking agreement on a strategy rather than for the sole purpose of seeking external legal advice. Accordingly, great care will be needed when seeking to rely on the preparatory materials exclusion, in particular, in demonstrating on the face of the document or in related materials that the document or documents are being prepared for the sole purpose of instructing external counsel.

It is also worth considering how this applies to witness account material specifically. There is limited case-law on this subject and it is accordingly difficult to predict exactly how such documents would be treated. However, given that the CFI states in Akzo Nobel that privilege applies to materials created by non-lawyers (ie employees) for the exclusive purpose of receiving legal advice, then it should follow logically that witness account material, which constitutes material prepared for the purpose of legal defence, should benefit from this protection by definition (particularly when prepared by external lawyers).

English law

English law is much more generous so far as concerns the availability of privilege in domestic competition investigation proceedings, and private enforcement actions.

English law divides legal professional privilege into two sub-heads - advice privilege and litigation privilege - albeit they are regarded as integral parts of a single privilege. Legal advice privilege protects confidential communications between a client and his lawyer made for the purpose of seeking or giving any legal advice or related legal assistance. Litigation privilege protects confidential communications or documents made by or between either the client or his legal advisor and a third party which are created for the dominant purpose of being used in connection with actual, pending or contemplated proceedings.

As to who constitutes a lawyer, it is well established under English law that communications of an in-house lawyer are capable of attracting legal advice privilege. The advice of foreign lawyers is also protected. The protection also extends to copies of the legal advice which are disseminated internally within a client organisation. On this last point, EU and English law are aligned.

We propose to focus on two particular questions that are likely to be of concern in any competition investigation in which there is either the prospect of infringement proceedings in the UK or a follow-on damages action in this jurisdiction: (i) whether litigation privilege arises in the context of the investigation; and (ii), if it does not, what is the status of materials prepared in the investigation, such as notes of interviews with employees or third parties.

When does litigation privilege arise?

The key distinction between litigation and legal advice privilege is that litigation privilege can protect communications with third parties, such as witnesses or experts - legal advice privilege does not. Litigation privilege does not, though, arise in all proceedings.

For it to arise, the proceedings must be adversarial. Although regulatory proceedings might seem adversarial to those the subject of them, the courts have drawn a distinction between adversarial and inquisitorial proceedings, holding that litigation privilege can arise only in respect of the former. So, in Re L [1997] AC 16, the House of Lords held that litigation privilege did not protect from disclosure an expert’s report prepared in the context of contested custody proceedings. In spite of the ostensibly adversarial format of the proceedings involving two sides contesting the custody arrangements, the House of Lords held that the proceedings should be regarded as inquisitorial, rather than adversarial, as the court was not concerned with determining a dispute between two parties but rather was engaged in an exercise to determine what was in the best interests of the child.

Whether litigation privilege arises in the context of an investigation under the Competition Act 1998 was considered in Tesco v OFT [2012] CAT 6, [2012] CompAR 188. That case arose from an OFT investigation into alleged price-fixing in the dairy sector and addressed the question of whether notes of interviews which Tesco’s external lawyers had conducted with third parties could be protected by litigation privilege. The OFT maintained that the administrative procedure under the Competition Act 1998 is investigative and inquisitorial by nature and, therefore, that litigation privilege could not arise at any point during an investigation.

Although the Competition Appeal Tribunal (CAT) followed the decision in Re L, the CAT’s reasoning was in fact more similar to Lord Nicholls’ dissenting judgment as it held that some proceedings are neither wholly inquisitorial nor adversarial and that the character and status of proceedings can change. It held that the OFT proceedings had become adversarial by the time Tesco contacted the witnesses (seven years after the investigation had started and over three years since the statement of objections (SO) had been issued). No general guidance or test was set down for determining by when proceedings should be considered to be adversarial. However, although in this case the relevant documents were created towards the conclusion of the proceedings, the CAT referred to the issue of the SO as a point after which Tesco stood accused of wrongdoing and the investigation was no longer simply an inquiry to get to the bottom of the facts.

That the CAT held in Tesco that litigation privilege applies, in part at least, to cartel investigations was a welcome development for parties involved in those procedures. However, the decision and its reasoning gives rise to real difficulties, in particular in determining when litigation privilege will arise in any particular case. There was sufficient force in the CAT’s reasoning as to why litigation privilege had arisen by a certain point in those proceedings for it to have been able to conclude that litigation privilege arises at the outset of any Competition Act investigation or when any such proceedings are in reasonable contemplation. So, the CAT noted that, although judicial review proceedings do not in theory involve a dispute between parties and are issued in the name of the Crown to request the High Court to exercise its supervisory jurisdiction, litigation privilege is nonetheless available in respect of those proceedings. The CAT also referred to Lord Nicholls’ statement that "the expression adversarial carries with it a connotation of confrontation and conflict". The CAT considered that by the time the SO was issued the character of the OFT’s administrative procedure was no less confrontational than ordinary civil proceedings involving the same alleged infringements. Given that reasoning, one might well argue that a regulatory investigation under the Competition Act is from the outset, to adopt the CAT’s terminology, also no less confrontational than ordinary civil proceedings. That would certainly be the case (or certainly the impression) for any party brought into those proceedings by means of a dawn raid (although arguably the position is less clear cut in respect of a leniency applicant).

The CAT then referred to the fact that in the procedure there was a serious risk that Tesco could be found liable for infringing the Competition Act and be fined up to a maximum of 10% of its worldwide turnover and be potentially liable in damages thereafter. The CAT also noted that it was common ground between the parties that the procedure whereby a fine is imposed for engaging in anti-competitive conduct in breach of the Chapter I Prohibition falls under the "criminal head" of Art 6 of the European Convention on for the Protection of Human Rights and Fundamental Freedoms 1950. The CAT accepted the OFT’s submission that the fact that Tesco’s Art 6 rights were engaged did not automatically mean that litigation privilege applied. Nonetheless, the CAT considered that it was a factor which was relevant to characterising the nature of the investigation. We would agree. Given that and the other points about the potential risks for a party involved in a cartel investigation, as well as the comments about the confrontational nature of such proceedings, there were sufficient grounds for the CAT to have concluded that the proceedings were adversarial from the outset. It is to be hoped that if the CAT or the High Court considers this issue again in the future, it will reach that conclusion, thereby removing the need to follow the reasoning in the dissenting judgment of Lord Nicholls in Re L in characterising the proceedings as partly adversarial and partly inquisitorial.

However, for the time being, given the CAT’s approach in Tesco, those advising parties involved in potential or actual Competition Act investigations will need to consider the point by which an investigation becomes adversarial. That will be a difficult exercise, particularly in the crucial initial period of an investigation. The CAT did not rule out litigation privilege arising at this early stage. Its approach was positive rather than negative, as it held that litigation privilege had arisen by a certain point rather than holding that it had not arisen before that point. Nonetheless, the reasoning and the reliance on the approach of Lord Nicholls in Re L led to an approach according to which proceedings appear to start off inquisitorial and then, at a certain point, change their character to become adversarial. The consequence of such an approach is that the earlier in the procedure a document is created, the less likely it is that litigation privilege will be available. Accordingly, unless and until the decision in T_esco_ is revisited, parties conducting an initial investigation, either in response to or in contemplation of a Competition Act investigation, will need to assume that that exercise will not be protected by litigation privilege.

Initial investigation if litigation privilege is unavailable

Two types of document, in particular, may be created which could contain particularly sensitive material: memoranda and other documents prepared at this point for submission to a lawyer (to be distinguished from pre-existing documents which will not be privileged); and notes of interviews with relevant employees. If litigation privilege is unavailable at this initial stage of a regulatory investigation, then the question arises as to whether such documents will be protected by legal advice privilege.

Preparatory materials

At the outset of a matter, it is likely that information will need to be conveyed to a lawyer in order for the lawyer to advise. This could include material prepared at this stage by employees. Such material might include memoranda or answers to questionnaires. Prior to 2003, most commentators would have assumed that such material prepared for submissions to a lawyer in order for the lawyer to advise would have been protected under English law by legal advice privilege. Indeed, as noted above, such material, provided it is created for the sole purpose of instructing a suitably qualified external lawyer, would be protected from disclosure to the Commission. However, in Three Rivers (No 5) the Court of Appeal took a very restrictive approach to legal advice privilege, holding that it extended only to communications between lawyer and client (which was narrowly construed in that case as comprising only those employees directly tasked with instructing external lawyers), and that material produced by employees for submission to the lawyers should be treated as material produced by third parties and so was not protected by legal advice privilege.

The decision has not been followed in other common law jurisdictions, which consider it to be wrongly decided 2. However, the House of Lords refused to reconsider Three Rivers (No 5) when given the opportunity to do so in Three Rivers DC v Bank of England (No 6), The effect of it is that communications between the client entity (the group tasked with instructing external lawyers) and lawyers will be privileged. However, preparatory documents (eg memoranda and background papers prepared at this stage) are not covered by legal advice privilege, certainly if prepared by employees outside of the client entity. Arguably, the restriction applies to all such preparatory documents, regardless of whether they have been created within the "client" entity or by other employees as the categories of documents which were ordered to be disclosed included materials produced within the client entity. That results in a very narrow and limited category of documents that can benefit from legal advice privilege.

Notes of interviews

The restrictive approach in Three Rivers (No 5) to defining the client entity within a corporation also has an impact on the status of the notes of interviews conducted with employees during an investigation. Such interviews can provide extremely useful material for a corporation in understanding the facts and in gathering the material to enable its lawyers to assess the situation and provide advice on possible courses of action. It is for this reason that such material could prove valuable to regulators and counterparties in litigation. It was interview notes of this sort that were the subject of the ruling in R v George, Crawley, Burnett and Burns, the criminal prosecution of four British Airways executives for participation in the fuel surcharges cartel. There the judge held that the OFT should have threatened to revoke the leniency agreements in place with Virgin Atlantic Airways if it did not waive privilege over the notes of interviews with its employees. He also questioned whether the notes of interview were in fact privileged.

The applicable guidance has changed since the date of this decision and the current OFT detailed guidance on principles and process, "Applications for leniency and no-action in cartel cases" (OFT 1495), July 2013 (2013 Leniency Guidance), now adopted by the Competition and Markets Authority (CMA), no longer requires waiver of privilege as an element of co-operation (although the CMA will, save where the position is uncontroversial, instruct an independent counsel (IC) to provide an opinion on whether the relevant information is privileged, and will require disclosure of information not found to be protected). This is to be welcomed. Although questions of waiver lie outside the scope of this article, we note the potential for difficult issues to arise in connection with s188 of the Enterprise Act (as amended by s 47 of the Enterprise and Regulatory Reform Act 2013), which now contains a defence to the cartel offence if an individual can show that he took reasonable steps to disclose the relevant arrangements in order to obtain advice about them before they were implemented. That provision gives rise to a host of questions and issues, not least that any advice about such arrangements may well have been provided to the corporation and not the individual. Accordingly, the privilege in such advice (and the request for it) will be the corporation’s to waive or assert. Whether an individual accused of the cartel offence is entitled to introduce such advice, and the consequences of any attempt to do so, both in those and future related proceedings, are issues with which the courts may have to grapple in due course.

A communication from a lawyer to a third party will not be covered by legal advice privilege. However, the Court of Appeal held in Balabel v Air India [1988] Ch 317 that legal advice privilege extended to drafts, memoranda and working papers of a solicitor. That raises the question of whether the lawyer’s notes of a non-privileged meeting with a third party would be protected by legal advice privilege.

The issue came up for consideration in Parry v News Group (1990) 140 NLJ 1719 (CA, Civ Div). The case arose from libel proceedings which had been settled in a "without prejudice" conversation between the two sides’ lawyers. A dispute then arose as to the terms of the settlement reached. The claimant disclosed and relied on a copy of its lawyer’s attendance note of the call with the defendant’s lawyer. The defendant sought disclosure of related communications on the basis that there had been a collateral waiver of privilege in those communications when the claimant sought to rely on this privileged attendance note. The Court of Appeal concluded that the question of collateral waiver would only arise if the lawyer’s note of his call with the other side’s lawyer was in fact privileged. It held that it was not, on the basis that it was a note of a non-privileged communication with a third party. The decision post-dates Balabel, which was considered and distinguished on the basis that Balabel was concerned only with communications between a client and its lawyer and not with communications between the lawyer and a third party.

Parry was referred to in the recent interlocutory decision of PAG v RBS. The documents at issue in that case comprised recordings of interviews with third parties. Although the decision ultimately turned on the consequences of subterfuge in recording conversations with third parties, the High Court referred to Parry as establishing that the record of a non-privileged communication, whether in the form of a recording, a verbatim note or transcript, cannot itself be privileged if the underlying conversation is not privileged.

However, whilst the underlying communication with a third party may not be privileged, lawyer/client communications containing details of those conversations remain privileged, as was held in Re Sarah C Getty Trust [1985] QB 956. There, the High Court held that a lawyer could be asked questions about his conversations with a third party but could not be asked about the report of such conversations provided to his client. Further, The Stax Claimants v The Bank of Novia Scotia Channel Islands and others [2007] EWHC 1153 (Ch) indicates that if the note is more than a bare record of the meeting and contains the lawyer’s thoughts and impressions, it may be privileged. In commenting on the attendance notes at issue in Parry, Warren J stated: "In contrast with that case, if a note of a conversation were also to contain the note-taker’s own thoughts and comments on what he is recording with a view to advising his client, the position would almost certainly be different: it is difficult to see why such a note should not attract litigation privilege". Although the case concerned a claim for litigation privilege over a note of a "without prejudice" conversation, and the point was not the subject of detailed examination in the decision, the judge’s comments provide a helpful indication of the position that might be reached were the point to be addressed in the context of a claim for legal advice privilege over a lawyer’s note of a meeting with a third party which contained the thoughts and comments of the lawyer.

The current position is that there is a line somewhere between, on the one hand, a verbatim record of a conversation with a third party (a designation which includes employees following Three Rivers (No 5)), which will not be privileged, and, on the other hand, a report or other form of lawyer/client communication which contains details of that conversation, which can be privileged. Where exactly that line lies will need to be determined in future litigation.

Conclusion

The EU rules on privilege have rightly been the subject of criticism for the restriction of the availability of privilege to external lawyers. However, steps can be taken at the outset of an investigation to ensure that an appropriate team of external lawyers is established and that all advice is provided by it. The decision of the CFI in Akzo Nobel provided an important (even if tightly restricted) protection for materials clearly prepared for the exclusive purpose of instructing external lawyers. By contrast, English law adopts a more liberal approach to the provision of advice by in-house as well as foreign lawyers. Further, once litigation privilege is engaged, English law provides a broad protection to a corporation preparing to respond to an investigation. However, following the decision of the Court of Appeal in Three Rivers (No 5), and its restrictions on the identity of the client entity and the availability of privilege in respect of background materials prepared by employees, there has been a regrettable restriction on the ability of a corporate client to, in the words of Advocate General Slynn, "turn to [its] lawyer for advice and help" [AM&S, n 2, above, AG’s Opinion]. Accordingly, parties engaged in competition investigations in which English rules of privilege might be engaged (either in a UK regulatory investigation or in private enforcement proceedings before the English courts) need to take real care, in particular in the important initial period of the investigation, to ensure that they consider how to conduct that investigation so as to benefit from the available privilege protections.

1. Akzo Nobel Chemicals v Commission (Case C-550/07 P) EU:C:2010:512, [2010] ECR I-8301, [2010] 5 CMLR 19, at paras 42–50.

2. See Pratt Holdings v Commissioner of Taxation (2004) 207 ALR 217; CITIC Pacific v Secretary for Justice and another [2015] HKCA 293, [2015] 4 HKLRD 20.