0370 270 6000

already registered?

Please sign in with your existing account details.

need to register?

Register to access exclusive content, sign up to receive our updates and personalise your experience on brownejacobson.com.

Privacy statement - Terms and conditions

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.

related opinions

IR35 changes - six months and counting...

In his 2018 Autumn Budget, the then Chancellor, Phillip Hammond, announced a significant change to the way liability for IR35 breaches will be dealt with for private sector companies from April 2020.

View blog

Court of Appeal confirms all employment tribunal judgments must be published on the register, except in national security cases

Under the ET Rules, all judgments and accompanying written reasons must be published on a pubic register which the general public can access online.

View blog

Marriott International: a look behind the ICO’s £99m fine and what this means for corporate acquisitions

Last month, the Information Commissioner’s Office (ICO) announced notice of its intention to fine (NOI) Marriott International, Inc. £99m for infringements of the GDPR.

View blog

SFO fail to secure individual criminal convictions following Deferred Prosecution Agreement

On 16 July 2019 the Serious Fraud Office released details of the Deferred Prosecution Agreement reached with Sarclad Ltd in July 2016.

View blog

mailing list sign up

Select which mailings you would like to receive from us.

Sign up