*/
Material generated during internal investigations can be handed over to the Serious Fraud Office (SFO), a judge ordered in a test case on litigation privilege in criminal cases.
The SFO had been investigating British mining company, Eurasian Natural Resources Corporation (ENRC), since 2013 over its activities in Kazakhstan and Africa. The company, which denies any wrongdoing, resisted the SFO’s application for disclosure of documents created during an internal investigation prior to the SFO’s involvment claiming they were covered by legal professional privilege.
In SFO v ENRC [2017] EWHC 1017 (QB), Mrs Justice Andrews ruled that most of the documents could be disclosed because they had been produced at a time before litigation had been commenced or anticipated.
Litigation privilege, she said, only extended to documents prepared with the sole or dominant purpose of conducting litigation, and not for the purpose of enabling advice to be taken in connection with anticipated litigation or in order to avoid litigation.
She accepted that ENRC believed that an investigation was imminent, but said that such an investigation was not ‘adversarial litigation’.
‘The policy that justifies litigation privilege does not extend to enabling a party to protect itself from having to disclose documents to an investigator.
‘Documents that are generated at a time when there is no more than a general apprehension of future litigation cannot be protected by litigation privilege just because an investigation is, or is believed to be imminent,’ she said.
Material generated during internal investigations can be handed over to the Serious Fraud Office (SFO), a judge ordered in a test case on litigation privilege in criminal cases.
The SFO had been investigating British mining company, Eurasian Natural Resources Corporation (ENRC), since 2013 over its activities in Kazakhstan and Africa. The company, which denies any wrongdoing, resisted the SFO’s application for disclosure of documents created during an internal investigation prior to the SFO’s involvment claiming they were covered by legal professional privilege.
In SFO v ENRC [2017] EWHC 1017 (QB), Mrs Justice Andrews ruled that most of the documents could be disclosed because they had been produced at a time before litigation had been commenced or anticipated.
Litigation privilege, she said, only extended to documents prepared with the sole or dominant purpose of conducting litigation, and not for the purpose of enabling advice to be taken in connection with anticipated litigation or in order to avoid litigation.
She accepted that ENRC believed that an investigation was imminent, but said that such an investigation was not ‘adversarial litigation’.
‘The policy that justifies litigation privilege does not extend to enabling a party to protect itself from having to disclose documents to an investigator.
‘Documents that are generated at a time when there is no more than a general apprehension of future litigation cannot be protected by litigation privilege just because an investigation is, or is believed to be imminent,’ she said.
Sam Townend KC explains the Bar Council’s efforts towards ensuring a bright future for the profession
Giovanni D’Avola explores the issue of over-citation of unreported cases and the ‘added value’ elements of a law report
Louise Crush explores the key points and opportunities for tax efficiency
Westgate Wealth Management Ltd is a Partner Practice of FTSE 100 company St. James’s Place – one of the top UK Wealth Management firms. We offer a holistic service of distinct quality, integrity, and excellence with the aim to build a professional and valuable relationship with our clients, helping to provide them with security now, prosperity in the future and the highest standard of service in all of our dealings.
Is now the time to review your financial position, having reached a career milestone? asks Louise Crush
If you were to host a dinner party with 10 guests, and you asked them to explain what financial planning is and how it differs to financial advice, you’d receive 10 different answers. The variety of answers highlights the ongoing need to clarify and promote the value of financial planning.
Most of us like to think we would risk our career in order to meet our ethical obligations, so why have so many lawyers failed to hold the line? asks Flora Page
If your current practice environment is bringing you down, seek a new one. However daunting the change, it will be worth it, says Anon Barrister
Creating advocacy opportunities for juniors is now the expectation but not always easy to put into effect. Tom Mitcheson KC distils developing best practice from the Patents Court initiative already bearing fruit
National courts are now running the bulk of the world’s war crimes cases and corporate prosecutions are part of this growing trend, reports Chris Stephen
Sam Townend KC explains the Bar Council’s efforts towards ensuring a bright future for the profession