In The RBS Rights Issue Litigation, the High Court has held that notes of investigation interviews with current and former employees by in-house and external lawyers were not privileged and protected from disclosure in litigation as the employees were not the ‘client’ and the notes did not reveal the trend of legal advice. The fact that the interview notes were taken in the US and were likely to have been privileged as a matter of US law made no difference. The case provides an important reminder of the need to consider carefully the identity of the ‘client’ when creating or disclosing documents for the purposes of a tax-related investigations. It also highlights some complexities surrounding privilege in cross-border disputes and investigations.
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