Privilege in Investigations Is Not Yet Dead: ENRC Granted the Right to Appeal

11/03/2017
Client Alert

In May earlier this year the High Court handed down a judgment which surprised many people. This judgment was that litigation privilege does not necessarily apply to documents and communications produced during the course of conducting internal investigations into possible bribery and corruption-related wrongdoing.

In her judgment, Mrs. Justice Andrews said that, in light of all the evidence, ENRC could not have foreseen litigation between itself and the SFO as “a real likelihood rather than a mere possibility.”

View our previous client alert that explains the case.

The Court of Appeal has granted ENRC leave to appeal the High Court decision, leaving open the possibility that the Court of Appeal will seek to provide further clarity on the exact scope of litigation privilege, with particular regard to internal investigations.

The Law Society criticised the High Court decision, describing it as “alarming” and saying that undermining professional privilege threatens the entire justice system. The Law Society has welcomed the decision to grant ENRC the right to appeal.

If the Court of Appeal upholds the ruling, many legal advisers fear that it could lead to internal documents relating to criminal investigations being handed over to the SFO to assist prosecutions. This could have significant consequences for corporate internal investigations, and could deter companies from self-reporting and co-operating with the SFO in the future.

The Court of Appeal decision will be eagerly awaited and closely watched by both legal advisers and their clients alike. 

This client alert was co-authored by James Colautti, a Trainee Solicitor in our London office.

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