*/
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.
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.
Chair of the Bar reports back
Marie Law, Director of Toxicology at AlphaBiolabs
A £500 donation from AlphaBiolabs has been made to the leading UK charity tackling international parental child abduction and the movement of children across international borders
Marie Law, Director of Toxicology at AlphaBiolabs, outlines the drug and alcohol testing options available for family law professionals, and how a new, free guide can help identify the most appropriate testing method for each specific case
By Louise Crush of Westgate Wealth Management
Marie Law, Director of Toxicology at AlphaBiolabs, examines the latest ONS data on drug misuse and its implications for toxicology testing in family law cases
A career shaped by advocacy beyond her practice, and the realities of living with an invisible disability – Dr Natasha Shotunde, Black Barristers’ Network Co-Founder and its Chair for seven years, reflects on a decade at the Bar
The odds of success are as unforgiving as ever, but ambition clearly isn’t in short supply. David Wurtzel’s annual deep‑dive into the competition cohort shows who’s entering, who’s thriving and the trends that will define the next wave
Where to start and where to find help? Monisha Shah, Chair of the King’s Counsel Selection Panel, provides an overview of the silk selection process, debunking some myths along the way
Do chatbot providers owe a duty of care for negligent misstatements? Jasper Wong suggests that the principles applicable to humans should apply equally to machines
There is no typical day in the life as a Supreme Court judicial assistant, says Josephine Gillingwater, and that’s what makes the role so enjoyably diverse
