The Director of the Serious Fraud Office v Eurasian Natural Resource Limited (Law Society Intervening) [2018] EWCA Civ 2006 (UK, 5 September 2018)
A Court of Appeal decision (England and Wales) on the question of whether litigation privilege attached to documents created by law and accountancy firms when investigating allegations of fraud, corruption and financial wrongdoing, some of which were raised by a whistleblowing complaint. The Serious Fraud Office ‘SFO’ (an arm of the criminal justice system in the UK, with a remit to investigate and prosecute crimes involving serious or complex fraud, domestic and overseas bribery and corruption) was seeking access to the investigation documents and this was being resisted by the respondent mining company. Long and detailed consideration of the legal principles applying to legal privilege in the UK.
Confirmed that legal privilege is split into two categories, namely, litigation privilege and legal advice privilege. Consideration of the SFO’s self-reporting scheme, which allows for plea bargaining in exchange for co-operative behaviour, including full disclosure of investigatory documents and a waiver of legal privilege. Here, while the company said it was going to co-operate, it never actually did and was successful in arguing that all of the documents prepared in investigating the alleged fraud and corruption were created in contemplation of litigation and covered by litigation privilege. Note this was an early case following the introduction of the Bribery Act in the UK and the court pointed out that the company failed to co-operate with the SFO, thereby increasing the risk of harsher penalties upon conviction.
Risk of all investigations being cloaked in legal privilege - note that here there had been press coverage of the whistleblower’s disclosure and the company anticipated a ‘dawn raid’ by the SFO which it then said was evidence that it contemplated litigation from the outset. In the event, matters became protracted, and negotiations around self-reporting took 2 to 3 years, allowing the company to internally investigate through legally privileged third parties. A harder line approach was required from prosecuting authorities on these issues from the outset to avoid similar outcome in future.