Director of the SFO v ENRC: CA 2019

The SFO conducted an investigation into possible overseas bribery and corruption by ENRC. ENRC conducted an internal investigation using external solicitors under the 2009 SFO Self-Reporting Guidelines. At first instance Andrews J had held that the documents there created were not protected by legal advice privilege. It was argued that litigation was in reasonable contemplation and thus the documents were protected by litigation privilege. The judge rejected the claim for litigation privilege because there was no evidence that there was anything beyond the unverified allegations themselves.
Held: The Court reversed the judge on litigation privilege on the facts. They adopted a much more generous view as to when litigation can be said to be in reasonable contemplation. The court treated it as something of an issue of principle. Vos C said that it was 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. Were they to do so, the temptation might well be not to investigate at all, for fear of being forced to reveal what had been uncovered, whatever might be agreed with a prosecuting authority[13]. The judge had held that adversarial litigation was not in reasonable contemplation in August 2011. By contrast the Court of Appeal accepted that adversarial litigation was in contemplation by April 2011, long before the SFO investigation commenced.

Judges:

Vos C

Citations:

Unreported 2019

Jurisdiction:

England and Wales

Cited by:

CitedKyla Shipping Co Ltd and Another v Freight Trading Ltd and Others ComC 22-Feb-2022
Litigation Privilege
Defendants challenged the claimants assertion of litigation privilege and contended for a waiver of any privilege which entitles them to disclosure of additional materials referred to in a witness statement.
Held: ‘I dismiss the waiver of . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 28 March 2022; Ref: scu.672123