L O B L E S O L I C I T O R S acted for the United States of America in relation to the biggest case ever filed in an American court.

The government is suing a number of tobacco companies for $280 billion, alleging that they misled the public about the risks of smoking.  

In December 2003, after a 3-day hearing, the Commercial Court in London made an order that Andrew Foyle, a partner in City solicitors firm Lovells, be examined about the document destruction policies of BATCo, a subsidiary of British American Tobacco plc, despite protestations that such evidence could not be obtained as a result of legal professional privilege.  A copy of the decision can be found here (Court Service website).

A copy of the American Court's Request to the English Court is on the website of the United States Department of Justice.

More information on the case can be found on the Department of Justice website, including a copy of the Amended Complaint.

The decision was appealed to the Court of Appeal.  The appeal was unsuccessful.

The Court of Appeal Decision is here.

Below is a selection of items about the case from the media

BAT adviser may hold smoking gun for big tobacco

Simon Bowers
Monday February 9, 2004

A partner at London law firm Lovells will tomorrow find himself caught up in one of the most potentially damaging claims being made in a colossal lawsuit

filed by the US government against a handful of the world's largest tobacco firms.

The $290bn claim, thought to be the biggest ever filed in a US court, includes an allegation that firms including Philip Morris, RJ Reynolds and British American Tobacco have suppressed or destroyed research documents on the health consequences of smoking while publicly insisting they were working hard to discover the dangers involved. All the firms deny such allegations. The size of the claim reflects the cost of treating Americans who developed smoking related diseases since 1953.

The US department of justice wants to talk to Andrew Foyle, a solicitor at Lovells, who provided legal advice to BAT over many years. It wants to ask him about the development of a "document retention policy" at the UK-based tobacco firm and about how it was implemented at BAT's overseas operations. The US government has assured the British courts that Mr Foyle is not accused of personal misconduct or impropriety of any kind. But Mr Foyle has told the US authorities he is bound by a legal duty to keep advice given to BAT confidential.

A high court judge ruled last December that the British solicitor should respond to limited questions, to be put to him before high court judge at a private hearing in the UK. Both BAT and Mr Foyle are challenging this order in the court of appeal tomorrow.

Mr Foyle's advice to BAT on document retention first attracted public scrutiny two years ago during a personal injury case brought in Australia by a dying smoker, Rolah McCabe, who contracted lung cancer after almost 40 years smoking cigarettes made by BAT companies.

A judge found BAT's Australian subsidiary had "deliberately obliterated" documents, depriving her of the right to a fair trial. However, this decision was overturned in its entirety by the Australian court of appeal.

Nevertheless the allegations surrounding BAT's international document management policy have not gone away. Last summer Fred Gulson, a former BAT Australia lawyer and company secretary turned whistleblower. He said: "[BAT Australia] had many internal documents that were considered sensitive ... The purpose of the document retention policy [in Australia] was ... to protect [our] legal position and to protect the legal position of other BAT group companies ... This could include their destruction [and] 'privileging them'."

BAT said its document retention policies were "proper, professional and in line with responsible corporate standards. The allegations made against BAT by the department of justice are false and denied."

Separate allegations were made by John St Vincent Welch, a former chief executive at Australia's tobacco lobbying group, the TIA - though he made no specific reference to BAT. He claimed to have taken part in the shredding of documents potentially dangerous to the tobacco industry.

He said: "If we were advised that litigation was pending and we had documents that potentially should be destroyed, the policy was quite clear - you don't. But very seldom were the documents left around long enough to be subject to that."

Lovells said: "We are satisfied that everything this firm has done in this matter has been entirely proper."

He added: "Andrew Foyle was acting throughout as solicitor to the BAT clients. It is his obligation ... to maintain client confidentiality and client privilege."

BAT said: "There are very sound public policy reasons for the protection of solicitor/client communications. BAT is requesting nothing further than the rights granted to any solicitor and their client."

BAT admits longstanding fear of health lawsuits

Heather Stewart
Wednesday February 11, 2004


British American Tobacco was readying itself to fend off litigation over the health effects of smoking as early as the mid-1980s, its lawyers admitted

yesterday, as they sought to prevent a former legal adviser from being forced to give evidence in a $290bn (£160bn) American lawsuit.

BAT is contesting a December high court judgment which called for its former adviser, Andrew Foyle, a senior partner at London law firm Lovells, to be questioned about "document retention policies" at the firm.

Andrew Howard, BAT's barrister, argued in the court of appeal that, because the tobacco firm was already nervous about being sued when Mr Foyle was hired, his communications with it were covered by client privilege and he should not be forced to answer questions about them.

"Lovells didn't have any other role: their purpose in becoming involved was because of the apprehension of claims and of demands for documents," he said.

If Mr Foyle answered any questions about his role at BAT, he said, "by doing so he will risk divulging what he has learned as a result of confidential communications".

The US government would like to speak to Mr Foyle in what is thought to be the largest claim for compensation to be filed in the US courts. He is not accused of wrongdoing, but prosecutors believe he could shed light on the document retention programme at BAT.

In evidence submitted by the US when it first made the request to the English courts to question Mr Foyle, he is cited as helping BAT to organise a "spring clean" of its documents to protect itself against litigation - although it subsequently promised him immunity from prosecution as a result of anything he told the prosecutors.

BAT's American subsidiary, Brown & Williamson, is one of the defendants in the massive damages case, together with several other tobacco firms including Philip Morris and RJ Reynolds. They are accused of systematically suppressing evidence on the health effects of smoking since as long ago as 1953.

Lord Justice Moore-Bick ruled in December that Mr Foyle could be asked limited questions on the case at a hearing in Britain. Both BAT and Mr Foyle are appealing against that decision.

The case is expected to conclude today.

D-day for Lovells’ Foyle in BAT case 

12th February 2004
Legal Week reports

Lovells partner Andrew Foyle is this week attempting to overturn an order from the US courts for him to give evidence relating to client British American Tobacco (BAT) in a key ruling for
professional legal privilege.

As Legal Week went to press, the senior litigator was appearing before the UK’s Court of Appeal to argue that a US ruling in December calling for Foyle to give evidence in the US Government’s $260bn (£140bn) lawsuit against tobacco giants BAT and Philip Morris should be rejected.

In a court request, District Judge Gladys Kessler said it appeared “necessary for the purpose of justice” that Foyle give evidence.

Kessler put forward 58 questions and points she wanted Foyle to answer, stretching from the creation and implementation of BAT’s document retention programme, to the storage, transportation and destruction of documents.

In a statement Lovells said: “We are satisfied that everything this firm has done in this matter has been entirely proper.”

The case looks set to put in place guidelines on the extent of legal professional privilege because Foyle, who has been granted immunity in the US courts, is citing client confidentiality as the reason he cannot give evidence.

The high profile case, thought to be the largest civil suit ever, is the second time BAT’s document retention policy and Lovells’ advice to the client has come under the spotlight.

In 2002, an Australian judge slammed the company’s destruction of documents, accusing it of subverting justice.

The judgment was later overturned on appeal. The Court of Appeal is expected to make a ruling on Foyle’s case within two months.

Foyle is being represented by Norton Rose and Brick Court Chambers silk Mark Hapgood. Loble Solicitors and One Essex Court’s Kenneth MacLean QC are acting for the US Government.

Justice Department Can Interview BAT Lawyer, U.K. Court Says

March 23 (Bloomberg) -- British American Tobacco Plc failed in its challenge of a London court ruling allowing the U.S. Department of Justice to interview one of the cigarette maker's lawyers for its $289 billion suit against the tobacco industry.

BAT, the world's second-largest cigarette maker, had appealed a High Court ruling permitting the Justice Department to interview Andrew Foyle, a litigation partner at London law firm Lovells, who acted for the cigarette maker from 1986 to 1994. The Justice Department wants to question Foyle about BAT's policy for retaining documents and claims documents about the dangers smoking poses to health were destroyed.

BAT's U.S. unit, Brown & Williamson Tobacco Corp., is among companies contesting the U.S. government's claims they misled the public and the U.S Congress about the risks of smoking. The Court of Appeal rejected arguments by lawyers for BAT that Foyle's advice to BAT is confidential and legally privileged because it was prepared with the prospect of litigation.

``It would be impossible to conclude that litigation against BATCo itself was reasonably in prospect when that company engaged Mr Foyle's services to advise it,'' Lord Justice Brooke wrote in the Court of Appeal's ruling.

The company was last sued in 1969 and it didn't face any contentious suits when Foyle was working for them, he said.

Client-Lawyer Relations

Today's ruling follows the appellate court's March 1 decision that communications between a client and his lawyers aren't confidential, unless they relate to advice on litigation, legal rights and duties, as opposed to advice on presentation.

That judgment forced the Bank of England to hand over documents to the liquidators of the Bank of Credit and Commerce International SA in which it had sought or received advice from its lawyers on the presentation of evidence to an inquiry into BCCI's 1991 collapse.

The Justice Department has promised Foyle immunity from prosecution and says there are no allegations of improper conduct by him. He will be questioned in front of a Commercial Court judge on April 26, the appeals court said. The U.S. trial is set for September.

The U.K. case number is Folio 2003/749, The United States of America v Philip Morris Inc. and others.  

Last Updated: March 23, 2004 08:02 EST

Court orders Lovells BAT partner to give evidence 

23rd March 2004
Legal Week reports

Lovells’ senior litigation partner Andrew Foyle has been ordered to give evidence over his client British American Tobacco’s (BAT’s) controversial document retention programme in a ruling that promises to further limit the scope of legal privilege.

In a Court of Appeal judgment this morning, Justices’ Brooke, Chadwick and Scott Baker granted the application by a US court that Foyle should give evidence in the US Government’s $260bn (£140bn) lawsuit against tobacco giants BAT and Philip Morris.

Foyle is now scheduled to face a grilling in the High Court next month over the sensitive details surrounding his client’s document retention policy.

In a statement, BAT said: "[We are] disappointed with the decision of the Court of Appeal, in failing to reverse the lower court’s findings in relation to its legal professional privilege, which the Court of Appeal itself acknowledged to be a basic human right.

"BAT will, in accordance with the December judgment of Mr Justice Moore-Bick, assert its privilege during the course of the examination of Mr Foyle."

The decision follows last year’s request by US District Judge Gladys Kessler for Foyle to answer 58 questions in relation to BAT’s programme, claiming it was "necessary for the purpose of justice".

The questions stretched from the creation and implementation of BAT’s document retention programme, to the storage, transportation and destruction of documents.

The case is now being closely watched for its impact on legal privilege as Foyle, who has been granted immunity in the US courts, cited client confidentiality as the reason he cannot give evidence.

The high profile case, thought to be the largest civil suit ever, is the second time BAT’s document retention policy and Lovells’ advice to the client has come under the spotlight.

In 2002, an Australian judge slammed the company’s destruction of documents, accusing it of subverting justice over a suit brought by Rolah Ann MaCabe, who has since died of cancer.

The judgment was later overturned on appeal.

BAT lawyer must face questions, court rules

Heather Stewart
Wednesday March 24, 2004
The Guardian

A lawyer for British American Tobacco will have to face questions in a lawsuit brought by the US government against some of the world's largest tobacco

companies, after the court of appeal yesterday rejected his claim that legal privilege should prevent him from having to give evidence.

At a private hearing in Britain next month, Andrew Foyle, a partner at London law firm Lovells, will be questioned about his role in BAT's controversial "document retention policy", under which, the US government alleges, research documents were routed through lawyers, marked "confidential" or even destroyed, in order to suppress evidence of the harmfulness of smoking.

The government has filed a $290bn claim for damages - thought to be the largest in American history - against several tobacco firms, including BAT, Philip Morris and RJ Reynolds.

Mr Foyle, who was retained by BAT from 1985 to 1994, is not accused of any wrongdoing.

But BAT's lawyers had argued that he should be protected by the confidentiality between lawyer and client from having to tell the US anything about his role.

However, the court of appeal, headed by Lord Justice Brooke, yesterday unanimously upheld the judgment of Lord Justice Moore-Bick in December last year that legal privilege did not give Mr Foyle blanket protection, and some of the questions the US government wants to ask him may be admissible.

"It is in the public interest that a court (on either side of the Atlantic) should have all relevant material available to it when it decides a case, let alone a case as important as this one," said yesterday's judgment.

There will be a "directions hearing" next week, at which a British judge will determine what Mr Foyle can be asked. He will then be questioned, beginning on April 26.

BAT said it was "disappointed" with yesterday's decision and pointed out that the court itself had called legal privilege a "basic human right".

Both BAT and Mr Foyle said they would comply with the hearing, but the tobacco firm still intends to assert privilege to cover as many of the communications between Mr Foyle and the company as possible.

The US trial is expected to commence in September.

BAT lawyer forced to testify in tobacco suit
By Rosie Murray-West City Correspondent (Filed: 24/03/2004)

Andrew Foyle, a partner at British law firm Lovells, is to be forced to give evidence in a colossal tobacco lawsuit filed by the United States government after the failure of an appeal by British American Tobacco yesterday.

Mr Foyle, who has been giving advice to BAT for many years, is expected to face questions on document retention policy.

The $290billion claim by the US government, thought to be the largest filed in a US court, includes an allegation that companies, including Philip Morris, RJ Reynolds and BAT, have suppressed or destroyed research documents on the health consequences of smoking.

The size of the claim purports to reflect the cost of treating Americans who have developed smoking-related diseases.

The US Department of Justice wants to talk to Mr Foyle about these issues. BAT and Mr Foyle had appealed a high court judgment in December that said that Mr Foyle could be questioned about document retention policies.

At the same time, Mr Justice Moore-Bick had said that Martin Broughton, executive chairman of BAT, did not have to give evidence.

The company said yesterday that it was "disappointed" that the appeal had failed to reverse the findings of the lower court.

The tobacco giant had claimed that the advice given to it by Mr Foyle was subject to "legal professional privilege".

However, Lord Justice Brook asserted yesterday that although there were likely to be areas of questioning that are "quite plainly covered by legal privilege, there will be other areas which quite plainly are not.

"In the debatable areas the judge, at the restored directions hearing, and the judge-examiner will both have to proceed with care. It must be remembered that it is the duty and pleasure of the English court to respond positively to a letter of request if it can."

Mr Foyle is now likely to be called to give evidence next month at a private hearing.

British American Tobacco has always denied that there were any problems with its document retention procedures and said the allegations made against it were "false and denied".

24th March 2004

Lovells partner faces the dock in tobacco case

  Lovells litigation partner Andrew Foyle is set to face questioning over five key areas of British American Tobacco’s [BAT] document destruction policy, after losing an appeal against an order forcing the lawyer to give evidence in a huge US tobacco litigation.

In the case of the United States v Philip Morris and others, the US Government is alleging that since 1953 the tobacco companies have engaged in trying to deceive and defraud the American public about health risks of smoking.

Foyle has been asked to give evidence because he advised various BAT companies including BATCo and Brown & Williamson, two of the co-defendants, on its document retention policy.

It is an important part of the US case that the tobacco companies allegedly took active steps to ensure that documents which they thought might damage them in any litigation were destroyed or suppressed to ensure that they could not be disclosed.

In particular there are five main categories on which Foyle’s evidence was sought.

These are: the creation of the document management policy; the implementation of the document management policy; rules and procedures set forth by the document management policy; destruction of smoking and health documents that pertain to BATCo’s and Brown & Williamson’s litigation position; transportation, routing, storage and warehousing of documents.

Foyle appealed the original order on the grounds of legal privilege.

In a statement BAT said: “BAT Co is disappointed with the decision of the Court of Appeal, in failing to reverse the lower courts findings in relation to its legal professional privilege, which the Court of Appeal itself acknowledged to be a basic human right.”

However the ruling does not mean that Foyle will necessarily have to provide evidence the US Government is seeking since he will still be able to assert legal privilege in relation to particular questions.

“BAT Co will, in accordance with the December judgement of Mr Justice Moore-Bick, assert its privilege during the course of the examination of Mr Foyle, “ the statement added.

The judge made it clear the Court of Appeal was not concerned with any issues relating to allegations of crime-fraud originally made against Foyle in the initial US letter of request. The US Government has also made it clear that it does not intend to bring civil proceedings against him.

The examination will commence on 26 April.

NATIONAL NEWS: Top lawyer to be quizzed by US in $289bn smoking claim

By Nikki Tait, Law Courts Correspondent
Financial Times; Mar 24, 2004

A senior London-based solicitor will be required to answer questions from the US Justice Department as it pursues its $289bn (£157bn) lawsuit against the tobacco industry over advice he gave on document destruction policies at British American Tobacco.

The Court of Appeal yesterday rejected an appeal by Andrew Foyle, a partner at Lovells law firm, against a High Court ruling requiring him to participate in the examination supervised by a judge-examiner.

Mr Foyle had challenged that decision principally on the grounds that the communications between himself and the BAT group were covered by litigation or legal advice privilege - with the result that the Court of Appeal's decision is seen as having much broader repercussions.

"This indicates a clear willingness of the courts to go behind lawyers' assertions of privilege," said Matthew Saunders, partner at the law firm DLA.

Another court decision, in the ongoing Bank of Credit and Commerce International/Bank of England case, had worried many legal advisers because it reined in the scope of legal privilege. But, said Mr Saunders: "This narrows down legal professional privilege a stage further."

Mr Foyle's role in advising BAT came to light two years ago through an Australian personal injury case brought by Rolah McCabe, a cancer victim who has since died. She sued BAT's Australian subsidiary seeking damages for injury caused by smoking.

In a strongly-worded decision, a judge struck out BAT's defence on the grounds that it had denied Mrs McCabe a fair trial by destroying potentially relevant documents at a time when it faced impending litigation. BAT did not deny destroying some documents but claimed that it had always acted legally, after taking advice from various lawyers.

The judge's decision was reversed on appeal. Nevertheless, the US authorities - which, in the US litigation, are alleging that from 1953 tobacco companies deceived and defrauded the US public about the risks of smoking - became interested.

They sought to question three people, including Mr Foyle, although they have since made clear that they are not making any allegation of improper conduct against the Lovells partner, and have no intention of bringing any civil proceedings either.

After yesterday's decision, Lovells said that Mr Foyle had contested the examination request because "it was his obligation as a solicitor to maintain the client's privilege".

LOVELLS PARTNER TO GIVE EVIDENCE IN US TRIAL:

Lovells litigation partner Andrew Foyle will have to give evidence on how client British American Tobacco (Investments) Ltd (BATCo) came to destroy documents on how smoking affects health, in the biggest case ever filed in a US court. The Court of Appeal dismissed Foyle’s and BATCo’s appeals against a December 2003 court order that required the lawyer to testify in United States of America v Philip Morris – a case that accuses Philip Morris, BAT and a number of other tobacco-related organisations of conspiring to deceive US consumers into becoming addicted smokers, despite knowing the health risks this carried.

Steven Loble, of London’s Loble Solicitors, advised the US Department of Justice in the case. He said the ruling would have a serious impact on legal professional privilege. ‘I think it will – in the sense that not all communications between lawyers and their clients are necessarily privileged. This case, together with the recent Three Rivers case, makes that clear,’ he said.

Foyle is due to testify in the High Court on April 26, and his evidence will be transcribed and videotaped for the US trial.  

26th March 2004

Lovells partner’s privilege appeal up in smoke

Lovells partner Andrew Foyle this week lost an appeal to shelter him from the US government's questions in relation to a court case against a group of tobacco companies.

The Court of Appeal rejected Mr Foyle's assertion that his communications with BAT Co, a subsidiary of Lovells' client British American Tobacco (BAT), were subject to blanket legal advice privilege.

Lord Justice Brooke upheld the High Court position that while Mr Foyle may be able to resist successfully some questions by asserting privilege, it was not clear at this stage that privilege would apply to the overwhelming majority of questions. It was therefore in the public interest that the examination should proceed, he said.

Mr Foyle will be examined in April, when questions drawn up by the US government relating to his knowledge of BAT and BAT Co's document management policy will be put to him by an English barrister. The hearing will be presided over by a High Court judge rather than a barrister - a novel procedure - so that privilege issues on individual questions can be resolved immediately unless they are appealed.

BAT Co is being sued in the US along with other tobacco companies for allegedly concealing medical research on the harmful effects of smoking and the addictive qualities of nicotine. Some companies are also accused of destroying documents.

Mr Foyle's solicitor Val Davies, a litigation partner at Norton Rose, said: 'Andrew is in an invidious position. As a solicitor he is obliged to try to maintain privilege and confidentiality, and that is what he has done.'

A spokeswoman for BAT Co said: 'BAT Co is disappointed with the decision of the Court of Appeal, in failing to reverse the lower court's findings in relation to its legal professional privilege, which the Court of Appeal itself acknowledged to be a basic human right.

'BAT Co will, in accordance with the December judgment of Mr Justice Moore-Bick, assert its privilege during the course of the examination of Mr Foyle.'

There is no implication of any wrongdoing by Mr Foyle, who has been assured by the US government that it will not seek to join him in the main action.