Internal investigations not privileged, rules High Court

Material generated during internal investigations can be handed over to the Serious Fraud Office (SFO), a judge ordered in a test case on litigation privilege in criminal cases.

The SFO had been investigating British mining company, Eurasian Natural Resources Corporation (ENRC), since 2013 over its activities in Kazakhstan and Africa. The company, which denies any wrongdoing, resisted the SFO’s application for disclosure of documents created during an internal investigation prior to the SFO’s involvment claiming they were covered by legal professional privilege.

In SFO v ENRC [2017] EWHC 1017 (QB), Mrs Justice Andrews ruled that most of the documents could be disclosed because they had been produced at a time before litigation had been commenced or anticipated.

Litigation privilege, she said, only extended to documents prepared with the sole or dominant purpose of conducting litigation, and not for the purpose of enabling advice to be taken in connection with anticipated litigation or in order to avoid litigation.

She accepted that ENRC believed that an investigation was imminent, but said that such an investigation was not ‘adversarial litigation’.

‘The policy that justifies litigation privilege does not extend to enabling a party to protect itself from having to disclose documents to an investigator.

‘Documents that are generated at a time when there is no more than a general apprehension of future litigation cannot be protected by litigation privilege just because an investigation is, or is believed to be imminent,’ she said.