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Court of Appeal to hear challenge to legal privilege decision

11 October 2017

The High Court’s decision earlier this year on legal professional privilege in Director of the Serious Fraud Office (SFO) v Eurasian Natural Resources Corporation (ENRC) Ltd [2017] EWHC 1017 was surprising to many in the profession and gave a warning that careful consideration should be given to the circumstances in which documents will be protected by legal professional privilege. Essentially, the SFO was successful in three out of four categories of documents that it asserted did not attract legal advice or litigation privilege. The detail of the original decision can be found in our article here but in a nutshell the court found that the documents had not been created in anticipation of proceedings but in respect of an investigation (which may or may not lead to a criminal prosecution).

The decision was criticised by many as a result of its impact on corporate investigations and organisations wanting to investigate incidents or allegations on the basis that such documents created could then be used against them at a later date. Many commentators also felt that this judgment did not accord with previous judgments on the question of privilege.

ENRC was granted permission to appeal that decision yesterday. 

In the meantime, organisations should be aware that documents could potentially be disclosable in relation to internal investigations if legal advice is not being sought or provided by lawyers in their capacity as a lawyer or if litigation is not contemplated or imminent. The Court of Appeal judgment will be eagerly anticipated and will hopefully give full and proper guidance on the question of privilege.

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