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Litigation privilege

08 May 2020 / Litigation Print

Litigation privilege reclaimed

Britain and Ireland’s positions are very similar in relation to litigation privilege, but the finding by the British High Court in 2017 in Director of the SFO v Eurasian Natural Resources Corporation Ltd ([2017] EWHC 1017) caused considerable uncertainty around the parameters of when privilege could be claimed.

The decision explored the limits of legal professional privilege, restricting how privilege applies in an internal investigation within a criminal context in Britain (see ‘Check your privilege’, December 2017 Gazette, p52).

The appeal ([2018] EWCA Civ 2006) raised important issues as to the proper scope of legal professional privilege in that particular context.

The 2017 case

In SFO v ENRC, following claims by a whistleblower, Eurasian Natural Resources Corporation Ltd (ENRC) had undertaken its own internal investigations. The Serious Fraud Office (SFO) had then proceeded with its investigations with a view to possibly pursuing a prosecution.

It started a criminal investigation and sought to compel ENRC to provide a number of documents, claiming that the documents were not privileged and should be disclosed. ENRC argued that the documents were the subject of legal advice privilege and/or litigation privilege.

The English High Court found that ENRC failed to establish that it was aware that litigation between itself and the SFO was a “real likelihood” rather than a “mere possibility”. It also held that the investigation by the SFO could not be deemed adversarial, as it was simply a preliminary step to be completed before any decision would be made to prosecute.

Further, ENRC failed to establish that criminal proceedings had been reasonably contemplated by it at any relevant time.

On appeal

The Court of Appeal found that the High Court had failed to give sufficient regard to specific facts and evidence that had discussed the possibility of litigation following the investigation.

The court did not consider whether the High Court had incorrectly applied the law on litigation privilege or the correct test to be used. Instead, the court found that the judge had disregarded evidence and documents that clearly pointed towards the contemplation of a prosecution if self-reporting did not successfully avert it.

It also found that, in both the criminal and civil context, legal advice given to avert, avoid or even settle reasonably contemplated legal proceedings remains protected by litigation privilege, as much as advice on defending or contesting such proceedings would be.

Further, the court held that it was in the public interest that companies should be prepared to investigate allegations, 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”.

In reaching its conclusions, the appeal court made some interesting obiter dicta remarks, while acknowledging a submission made by the Law Society of England and Wales that the law was out of step with international common law.

It recognised that there was no need to examine legal advice privilege, since it had already decided the matter on the basis of litigation privilege, and it was also unable to depart from the test set down in Three Rivers (No 5) ([2003] EWCA Civ 474).

However, it did note that “legal professional privilege is a classic example of an area where one might expect to see commonality between the laws of common law countries” 

Future endeavours

Since the Court of Appeal dec.ision, the SFO confirmed that it would not be appealing. While Ireland does not have the same level of case law around this issue, on the basis of the approach taken in Britain, it is indicative that litigation privilege could be successfully asserted in analogous circumstances here, such as an investigation by a regulator of a regulated entity.

Gazette Desk
Gazette.ie is the daily legal news site of the Law Society of Ireland