Legal professional privilege dealt a blow in SFO v ENRC

On 8 May 2017 Mrs Justice Geraldine Andrews DBE handed down judgment in The Serious Fraud Office v Eurasian Natural Resources Corporation, in which Richard Lissack QC and Tamara Oppenheimer acted for the defendant company (instructed by Signature Litigation). This was a civil claim brought by the SFO under Part 8 of the CPR challenging ENRC’s claim to privilege in respect of various documents created in the context of an anticipated criminal investigation and during the course of ENRC’s engagement with the SFO in a self-reporting process.

The claim engaged issues of litigation privilege as well as legal advice privilege in relation to interview notes of individuals which had been produced by ENRC’s lawyers. The case therefore involved the thorny issue raised by the Court of Appeal’s controversial decision in Three Rivers 5 of who constitutes the “client” for the purposes of legal advice privilege; it  raversed similar ground to that considered recently by Mr Justice Hildyard in the RBS Rights Issue Litigation.

Save in one limited respect, the Judge rejected all of ENRC’s claims to privilege. The decision is surprising in many respects, not least because its effect is that litigation privilege in the criminal context will arise only in limited circumstances, and far more rarely than in a civil context.

Amongst the findings made by the Judge in relation to litigation privilege were that (i) a raid by the SFO and the processes triggered by a raid (including an SFO investigation) did not constitute adversarial litigation; (ii) reasonable anticipation of a criminal investigation did not amount to reasonable anticipation of litigation; (iii) litigation privilege applies only to documents prepared for the sole or dominant purpose of conducting litigation (and not to documents produced with the purpose of enabling advice to be taken in connection with anticipated litigation; (iv) litigation privilege does not apply to documents created with the purpose of obtaining advice about how to avoid contemplated litigation.

As regards the claim to legal advice privilege over interview notes, the Judge followed the approach of Hildyard J in the RBS Rights Issue Litigation and considered that Three Rivers 5 set down a general test as to who could constitute the client for the purposes of legal advice privilege, and declined to follow the approach of the Singapore Court of Appeal in Skandinaviska v Asia Pacific Breweries [2007] 2 SLR 367. The Judge also rejected ENRC’s case that the interview notes comprised lawyers’ working papers.

The Judge refused permission to appeal on all aspects of the decision so the application for permission (including in relation to the Judge’s approach to the evidence, which she regarded to be inadequate to substantiate the claims to privilege) will be made to the Court of Appeal.

This decision is likely to have profound consequences on the practice of corporate internal investigations in a civil and criminal context and self-reporting in the criminal context.

The full judgment is available here.

If you would like Richard and/or Tamara to speak about the issues arising from this decision, please contact their clerks Alex Taylor (alex@fountaincourt.co.uk) or Sian Huckett (sian@fountaincourt.co.uk)