Too hot to handle: using an opponent’s privileged information

When should you stop reading? For those who receive an opponent’s privileged information without their consent, the English Court of Appeal has handed down a stark reminder that the answer is immediately (along with a return of the documents to the opponent). The recent judgment in The Federal Republic of Nigeria v Process and Industrial Developments Ltd [2025] EWCA Civ 715, which emerged from one of the most high-profile arbitration disputes in recent years, highlights the risks of using an opponent’s privileged material, no matter how useful that information might be thought to be.

The dispute and P&ID’s conduct

The underlying arbitration case concerned a gas supply processing agreement (the GSPA) between the Federal Republic of Nigeria (FRN) and Process and Industrial Developments Ltd (P&ID). P&ID was successful in its claim that FRN had failed to perform its obligations under the agreement and was awarded US$6.6 billion.

Unbeknownst to FRN, however, P&ID had engaged in various underhand practices throughout the engagement. As relates to the GSPA and the substantive dispute, P&ID in fact procured the agreement by bribery, P&ID continued to pay bribes during the arbitration to conceal the fact of the earlier bribery, and P&ID submitted a false witness statement purporting to explain the legitimacy of the entry into the GSPA.

As relates to the conduct of the proceedings, and of most interest for present purposes, the lawyers acting for P&ID – in particular its solicitor, Seamas Andrew (who also acted as counsel in the arbitration, and was a director and majority shareholder of P&ID), and an advising barrister, Trevor Burke KC – had been provided with some of FRN’s internal legal documents during the arbitration. That access revealed, in particular, FRN’s internal consideration of merits, strategy and settlement, and the fact that FRN was unaware of the bribery that had taken place.

FRN successfully challenged the arbitral award before the English Commercial Court, based on the bribery and corruption, perjury, and misuse of privileged material by P&ID. The arbitration award was accordingly set aside under section 68(2)(g) of the Arbitration Act 1996. P&ID’s application for permission to appeal that decision was refused.

The findings as to use of privileged documents

Mr Andrew and Mr Burke were provided with FRN’s internal legal documents, documents which the court of first instance described as “plainly subject to legal professional privilege”. It was found that Mr Andrew appreciated that the documents included ones that were privileged, knew that P&ID was not entitled to see the documents, and therefore knew that something untoward was going on in the provision of the documents to P&ID. By way of illustration, one of the documents was an internal letter assessing P&ID’s expert statement as formidable; while another was an internal letter giving instructions as to what settlement figure FRN would accept. Plainly there was no reason why disclosing such a document would be in FRN’s interests, and having sight of such documents cannot but have informed the P&ID lawyers’ approach to the dispute.

However, despite the fact that the lawyers must have known that the material was privileged and that they were not entitled to see it, they did not put a stop to the provision of the documents, a decision described as “indefensible” by the Commercial Court. The lawyers’ attempted explanations for receiving and retaining the documents were rejected as false. The Commercial Court said the motivation here was money: Mr Andrew was instructed on a contingency fee basis and stood to make up to £3 billion on a successful claim, while Mr Burke would have been paid £850 million.

The Commercial Court Judge also said he was referring a copy of his judgment to the Bar Standards Board in the case of Mr Burke KC and to both the Solicitors Regulation Authority and the Bar Standards Board in the case of Mr Andrew to consider the professional consequences of their conduct in relation to the use of FRN's privileged material. 

Mr Andrew’s appeal to the Court of Appeal

Mr Andrew sought permission to appeal the Judge’s findings against him, in spite of the fact that he was not a party to the proceedings and only a witness.

The Court of Appeal refused the application for permission to appeal for procedural reasons, but at the same time dealt with the substance of Mr Andrew’s arguments on the retention and use of FRN’s privileged material. In endorsing the findings of the Commercial Court, the Court of Appeal said this at paragraph 166 of its judgment:

“Where a solicitor obtains from his client the other side's privileged documents which he knows or suspects have been illicitly obtained without the consent of the other side, he cannot simply do nothing, let alone, as here, continue to use the documents. His duty is to ensure that these documents are returned to the party to whom they belong or, if his client refuses to return them, to cease to act. [Counsel for Mr Andrew’s] contention that there was no basis for any conclusion that Mr Andrew used the FRN internal legal documents is without merit. As was pleaded [in] the Re-Re-Re-Amended Statement of Case, it is to be inferred that P&ID was making use of the privileged documents to gain knowledge of what FRN was being advised and of the steps FRN was taking or planning to take in the arbitration. Mr Andrew was one of the human agents through whom P&ID acted and, as the judge found, he read the FRN internal legal documents, sufficient "use" in and of itself. Overall, the finding that Mr Andrew's conduct was indefensible was plainly correct.”

We expect this paragraph to be used in future to clearly state the position should any party or their lawyers be tempted to retain or use their opponent’s privileged material which has been illicitly obtained.  

Practice points

The message of the case is clear, but worth repeating: if you receive an opponent’s privileged documents – whether from your own client or a third party – and you know or suspect the documents have been obtained illicitly without the consent of the other side, you cannot simply do nothing (let alone make use of those documents, as occurred in this case). The lawyer’s duty is to stop reviewing the documents and ensure they are returned to the party to whom they belong. If the client refuses, you must cease to act. To do otherwise risks the possibility that the lawyer will have to cease acting if the conduct is discovered prior to a trial or arbitration hearing, or that any judgment or award obtained is liable to be set aside. Additionally, the lawyer concerned may face professional misconduct claims and reputational harm.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, July 2025