It’s a privilege, or is it…?

Companies and individuals rely on their ability to carry out investigations when a claim (civil or criminal) is on the horizon, secure in the knowledge that the results of the investigations will be protected from disclosure by legal professional privilege. This protection, already weakened by the decision of the Court of Appeal in Three Rivers (No 5) in 2003, was thrown into further doubt in 2017 by the first instance decision in Serious Fraud Office v Eurasian Natural Resources Corporation. 

ENRC appealed, and the Court of Appeal handed down judgment on 5 September 2018. We look at the background, the judgment, and the implications. 

Background

This case involves a criminal prosecution by the SFO against ENRC in connection with alleged international fraud. The circumstances first came to light following a whistle-blowing email in December 2010, which led ENRC to commence internal investigations and engage solicitors and forensic accountants to assist it. 

ENRC’s first contact from the SFO was in August 2011 and by the end of 2011 several high-level meetings had taken place with the SFO. In March 2013 the SFO served notice that it was considering whether to start civil proceedings, and in April 2013 it confirmed this. A prosecution was commenced in February 2016, in which the SFO sought disclosure of all of the documents resulting from ENRC’s investigations begun in 2011. These included notes of evidence obtained by the lawyers from internal and external witnesses, summaries of this evidence, materials generated by the accountants in the course of their review, and internal emails. ENRC resisted the application, arguing that the documents were protected by litigation privilege, legal advice privilege, or both. 

Broadly, legal advice privilege relates to communications between a lawyer and client for the purpose of legal advice. Litigation privilege can apply to communications between a wider class of people; two of the factors needed to establish litigation privilege are that the documents were created for the “dominant purpose” of adversarial litigation (civil or criminal), and that this litigation was either in existence or “reasonably contemplated” at the time the documents were created. In the context of the investigation of (potential) claims, the two often overlap. 

First instance decision

In May 2017, the High Court granted the SFO’s application for disclosure in respect of all the categories of ENRC’s documents. In relation to litigation privilege, it held that litigation was not in reasonable contemplation when the documents were created, and neither was the defence of a claim their “dominant purpose”. One category of documents did meet the test for legal advice privilege (and was protected from disclosure as a result), but the rest did not. The effect was that three of the four categories of documents were ordered to be disclosed. The implications of this decision caused consternation amongst the legal profession, and when ENRC appealed, the Law Society obtained permission to intervene. 

The appeal

The Court of Appeal reversed the High Court decision. It focussed primarily on litigation privilege, holding that from the outset of its investigations ENRC was aware that litigation between it and the SFO was a real likelihood, and the investigations were conducted in reasonable contemplation of this. 

Further, the dominant purpose of the investigations was the anticipated claim, but helpfully the court clarified the broad context in which this should apply. Preparatory work to defend a claim includes work to “head off, avoid or even settle reasonably contemplated proceedings”, and the fact that the intention may be to show the resulting document to the other side does not mean that the work done to investigate and prepare it is not privileged. 

Other than two emails, all the documents which the High Court had ordered to be disclosed were protected by litigation privilege. This meant that the issue of legal advice privilege was of limited significance. Here, the Court of Appeal was constrained by its own decision in Three Rivers (No 5), which decided that communications between a company employee and the company’s lawyers did not attract legal advice privilege unless the employee was tasked with seeking that advice. 

However, in a clear signal that it considered Three Rivers (No 5) to be questionable, the Court of Appeal invited review of this area by the Supreme Court, commenting also that English law is out of step with other common law jurisdictions on the point. The Supreme Court will have to review the law in another case as the SFO has now said that it will not be appealing the decision.

Consequences

This decision is a good one. It applies a common-sense approach to litigation privilege which is in tune with modern litigation practice, where parties are expected to pro-actively investigate and then engage with each other with the common aim of avoiding litigation. 

It also fits with a culture of increased encouragement around whistle-blowing, and where parties are expected to investigate and self-report to regulators in appropriate cases. While the decision in Three Rivers (No 5) still casts some doubt on the extent of legal professional privilege for in-house investigations, the judgment in SFO v ENRC should give businesses and individuals the confidence to fully investigate potential claims when they arise, reasonably secure in the knowledge that their investigations will be protected by litigation privilege.