High Court Case on Privilege

In Director of the Serious Fraud Office v Eurasian Natural Resources Corp Limited [2014] EWHC 1017 (QB) the Serious Fraud Office applied for a declaration that certain categories of documents generated by solicitors and forensic accountants during an internal investigation into the activities of the Defendant were not subject to legal professional privilege.

Mr Justice Andrews reviewed the case law on privilege and held:

  • Litigation privilege afforded protection to material prepared in respect of reasonably anticipated litigation; whether or not litigation was reasonably anticipated was an objective question comprised with consideration of the party’s state of mind (Three Rivers DC v Bank of England (Disclosure)(No4) [2005 1 AC 610 followed). Litigation privilege did not extend to documents prepared with the intention of being disclosed or to third party documents created in order to obtain legal advice on how to avoid litigation.
  • Legal advice privilege afforded protection to confidential communications between lawyers and their clients for the purpose of giving or receiving legal advice (irrespective of whether litigation is anticipated). However, in the case of a company, privilege only attached to communications between the lawyers and those individuals authorised by the company to obtain the advice, it did not attach to other officers or employees of the company not matter how senior (RBS (Rights Issue Litigation) [2016] EWHC 3161 (Ch) applied).
  • Applying the law to the facts, litigation privilege did not apply; reasonably contemplation of a criminal investigation did not automatically equate to reasonable contemplation of actual prosecution. On the facts, the Defendant had not appreciated when the documents were created that prosecution was a realistic proposition. The situation may be different in civil proceedings where a party may more readily anticipate that a dispute will be resolved through litigation.
  • Applying the law to the facts, only five documents qualified for legal advice privilege the remainder did not. They were not documents prepared as between lawyers and those authorised to obtain the advice; further, documents contained verbatim notes of what the lawyers were told rather than legal advice. The fact that certain communications had a legal dimension was insufficient to attract privilege – even though the Defendant’s head of mergers and acquisitions (a qualified lawyer) had been asked to provide legal advice he had not been engaged as a legal advisor and his advice did not qualify for legal advice privilege.