Landmark litigation privilege case set to go to UK Court of Appeal

Out-Law News | 23 Oct 2017 | 12:11 pm | 1 min. read

A mining company under investigation by the Serious Fraud Office (SFO) has been granted the right to appeal a High Court decision over its rights to litigation privilege.

In May the High Court ruled that the Eurasian Natural Resources Corporation (ENRC) could not claim litigation privilege over documents relating to the SFO investigation, which focuses on allegations of fraud, bribery and corruption around the acquisition of substantial mineral assets in Kazakhstan and an African country.

In connection with the criminal investigation, the SFO brought a civil claim challenging ENRC's claim to privilege in respect of various categories of documents, generated during the company's internal investigations between 2011 and 2013.

In May corporate crime expert Anne-Marie Ottaway of Pinsent Masons, the law firm behind Out-Law.com, said the High Court decision suggested that litigation privilege would not cover documents and interview records created during internal investigations in anticipation of future criminal proceedings.

Ottaway added that the decision brought into “stark focus” the difficulty of establishing litigation privilege when there were ongoing criminal investigations.

Commercial litigation expert Michael Fletcher of Pinsent Masons said in May that the case "is a clear reminder to clients of the risks of conducting internal investigations of any sort, for example fact-finding investigations to determine whether to terminate a contract, without taking legal advice on whether litigation is in reasonable contemplation".

"It is also a reminder of the importance of clearly defining the internal 'client' that is to receive legal advice: the solicitors interviewed various individuals within ENRC who were not authorised to seek or receive legal advice on behalf of ENRC, and so notes of those interviews were not privileged," he said.

Although ENRC lost its original case for litigation privilege, it won the right to withhold a sub-set of documents from the SFO, to which legal advice privilege applied.

Litigation privilege applies to communications and documents that have been prepared for the dominant purpose of defending legal proceedings, or where legal proceedings are reasonably anticipated. Legal advice privilege applies to confidential communications between lawyers and their clients which relate to the provision of legal advice.

Giving permission for the appeal, a Court of Appeal judge said ENRC's grounds of appeal had a “real prospect of success”.