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Legal professional privilege revisited – but not for the last time

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  • Elisabeth Ross

In the landmark case of Serious Fraud Office (SFO) v Eurasian Natural Resources Corporation (ENRC), the Court of Appeal has overturned a controversial High Court decision restricting the application of litigation privilege.

Elisabeth Ross considers what this means for practitioners.

The judgment of Sir Brian Leveson, Sir Geoffrey Vos and Lord Justice McCombe in Director of the Serious Fraud Office v Eurasian Natural Resources Corporation [2018] EWCA Civ 2006 addressed issues of legal professional privilege generally, but does not alter the current law concerning legal advice privilege.

The underlying dispute between ENRC and the SFO concerned the protection afforded by litigation privilege or, alternatively, legal advice privilege in relation to documents including interview notes and forensic investigations.

Litigation privilege

The judgment confirms the following key points:

  • The fact that solicitors prepare a document with the ultimate intention of showing that document to the opposing party does not automatically deprive the preparatory work they have undertaken of litigation privilege.
  • In both civil and criminal contexts, legal advice given so as to head off, avoid or even settle reasonably contemplated proceedings is as much protected by litigation privilege as advice given for the purposes of resisting or defending such contemplated proceedings. This materially expands the meaning of the ‘dominant purpose’ in determining whether litigation privilege applies, overturning the earlier High Court decision in the same case.
  • As a matter of public interest, companies should be able to investigate allegations, in advance of going to a prosecutor such as the SFO, without losing the benefit of legal professional privilege for the work product. Such work product would include notes of interviews, and reviews of books and records.

Legal advice privilege

The judgment summarised the principle established in Three Rivers District Council and Others v The Governor and Company of the Bank of England [2003] EWCA Civ 474 (Three Rivers No. 5) in the following terms: ‘that communications between an employee of a corporation and the corporation’s lawyers could not attract legal advice privilege unless the employee was tasked with seeking and receiving such advice on behalf of the client’.

This was problematic for ENRC, whose legal advisers had sought information from both current and ex-employees of its subsidiary companies.

Current English law is undesirably out of step with international common law on this issue

The Court of Appeal noted that it saw difficulties with the Three Rivers (No.5) finding in the modern era of multi-national companies, acknowledging that information upon which legal advice is sought is unlikely to be in the hands of the main board or those it appoints to seek and receive legal advice. Further, this created an undesirable imbalance between the application of the rule to small and larger companies.

The judgment also acknowledged that the current English law is undesirably out of step with international common law on this issue. Whilst clearly acknowledging the deficiencies in the current law, the Court of Appeal noted that, had it been open to it to depart from Three Rivers (No. 5) it would have been in favour of doing so. Nevertheless, the court was of the view it was not open for it to do so – rather, the issue would need to be considered again by the Supreme Court in this or an appropriate future case.

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