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Briefing

ENRC appeal on privilege: Five key points arising out of the decision

The Court of Appeal has overturned the High Court’s decision in the case of the Serious Fraud Office v Eurasian Natural Resources Corporation ([2018] EWCA Civ 2006), confirming that documents produced during an internal investigation can be protected by litigation privilege.

Significantly, the Court found that criminal proceedings were sufficiently contemplated for litigation privilege purposes at the point at which ENRC commenced an internal investigation following a whistle blower report alleging corruption in parts of its business, and they were certainly contemplated when the Serious Fraud Office (SFO) subsequently contacted ENRC about the same matter (even though the SFO stated it was not at that time carrying out a criminal investigation into ENRC).

In the course of what will be viewed as a welcome decision for corporates looking to investigate alleged wrongdoing, the Court noted that it is “obviously in the public interest that companies should be prepared to investigate allegations from whistle blowers or investigative journalists, prior to going to a prosecutor such as the SFO, without losing the benefit of legal professional privilege for the work product and consequences of their investigation”.

The decision is also of broader significance as it confirms that documents prepared for the purpose of avoiding litigation, whether civil or criminal, can be protected by litigation privilege.

Please click the attached PDF for our analysis of five key points from this decision.