Cross-border investigations and privilege – what is the governing law?

Cross-border investigations and privilege – what is the governing law?

Consider the following scenario – you are an US-based employer with a subsidiary or branch in London. You instruct General Counsel from the US Head Office to carry out an internal disciplinary investigation into a senior executive based in the London office. Following the internal investigation, you summarily dismiss the senior executive. The senior executive then brings a wrongful dismissal claim and seeks specific disclosure of the internal investigation report and communications between the General Counsel and the London-based HR team. You attempt to resist the specific disclosure request, since you received advice from your US lawyers that these communications are covered under US attorney-client privilege.

What laws of privilege applies? Is it English law or US law?

This is very important in the context of cross-border investigations, as what might be privileged in the United States might not be privileged in England & Wales.

Background

Under English law, legal professional privilege consists of litigation privilege and legal advice privilege. As explained in one of my previous articles, legal professional privilege is unlikely to attach to a disciplinary investigation (carried out by a solicitor or a barrister), since: (i) the investigation report isn’t being produced for the dominant purpose of giving or obtaining legal advice or assistance (rather, it is being produced to provide HR support), so it cannot be covered by legal advice privilege; and (ii) it is not being created for the dominant purpose of litigation which is either pending, reasonably contemplated or existing at the time of the communication.

By contrast, the laws of privilege in the United States can be potentially broader in application when it comes to determining whether internal investigations are covered by privilege. In the US Court of Appeals for the D.C. Circuit decision of In re Kellogg Brown & Root Inc., 756 F.3d, it was held that “[s]o long as obtaining or providing legal advice was one of the significant purposes of the internal investigation, the attorney-client privilege applies, even if there were also other purposes for the investigation and even if the investigation was mandated by regulation rather than simply an exercise of company discretion.”

Conflict of laws and privilege

Rule 3 of Dicey, Morris & Collins on the Conflict of Laws (16th Edition) state that “[a]ll matters of procedure are governed by the domestic law of the country to which the court wherein any legal proceedings are taken belongs (lex fori).” This rule has been consistently applied by the English courts since the mid-19th century; see RBS Rights Issue Litigation [2016] EWHC 3161 (Ch) at §169.

Bourns Inc v Raychem Corporation [1999] C.L.C. 1029 illustrates the principle that in English proceedings, the fact that a document is privileged or not under foreign law is irrelevant. Aldous LJ commented (at p.1041) that:

“To suggest otherwise would mean that a court, when deciding whether to uphold a claim for privilege, would need to be informed as to whether privilege could be claimed in all the countries of the world.

 […] 

The fact that under foreign law the document is not privileged or that the privilege that existed is deemed to have been waived is irrelevant. The crucial consideration is whether the document and its information remain confidential in the sense that it is not properly available for use. If it is, then privilege in this country can be claimed and that claim, if properly made, will be enforced.

In the present case the documents and the information in them remain confidential in the sense that I have used that word. It follows that the documents remain privileged under English law, whether or not the right to privilege from production in a foreign country is deemed not to exist or to have been waived.”

In the RBS Rights Issue Litigation decision (cited above), the High Court rejected a submission from RBS that there should be a choice of law rule where “[s]ave where to do so would be contrary to English public policy, the English court should apply the law of the jurisdiction with which the engagement or instructions, pursuant to which the documents came into existence or the communications arose, are most closely connected” (see §137). Hildyard J noted at §174(6) that:

“The practical difficulties of applying some other law than the lex fori are fairly obvious: it was recognised in In re Duncan [1968] P 306 that any solution but the application of the lex fori requires determination of the application and content of foreign law, and even the identification of the relevant foreign law may be difficult according to the stage and context in which the issue arises. Those difficulties are compounded where, in multi-jurisdictional cases involving several parties, there is the potential for a variety of different putatively applicable laws, and the prospect of having to determine them at an interlocutory stage, with cross-examination of experts if there is a disagreement.”

What to take away

It is not unusual for a multinational employer to instruct in-house counsel from another jurisdiction to carry out a disciplinary or grievance investigation for their London based HR team.

This is particularly common where the employer has a relatively small presence in London and may require support from their Head Office (based in a different jurisdiction) to carry out an internal investigation. It may also arise in cases where the London-based employee is sufficiently senior to the point that the employer may prefer that their Head Office carries out the investigation instead of their London-based HR team.

However, applying the scenario above, the mere fact that an investigation report might be covered by attorney-client privilege under US law is an irrelevant consideration for an English court or tribunal. Employers who decide to instruct a lawyer based in a different jurisdiction to carry out an investigation must seek advice from English counsel in order to determine whether an English court or tribunal will conclude that legal professional privilege should attach to the internal investigation.

Lucas Nacif is an employment and business disputes barrister at 42BR Barristers and is developing an independent investigations practice. Please contact Lucas’ clerks at 42BR Barristers ([email protected], [email protected] or [email protected]) should you wish to instruct him.

6th Feb 2026

Lucas Nacif

Call 2021