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Court of Appeal rules to protect Litigation Privilege

At the beginning of September 2018, the Court of Appeal gave a landmark judgement in Director of the Serious Fraud Office v Eurasian Natural Resources Corporation Ltd.

The case concerned documents which were created after Eurasian became aware of allegations of fraud and bribery in its business and instructed lawyers to investigate this internally. As part of this internal investigation, lawyers and forensic accountants conducted interviews, took notes and wrote reports. The Fraud Office later brought a criminal claim against Eurasian and wanted Eurasian to disclose these documents. Eurasian argued the documents were protected by privilege.

In the UK there are two types of privilege, legal advice privilege that protects advice and conversations between a lawyer and his client, and litigation privilege that protects documents created by lawyers or non-lawyers which are made for the dominant purpose of litigation that is either currently underway or in contemplation.

The High Court previously ruled that the documents were not protected by legal advice privilege as the documents were not between a lawyer and a client but interviews with 3rd parties or non-lawyer-client communications. They were also not protected by litigation privilege as the documents were not created for the dominate purpose of litigation but rather as part of the internal investigation and the criminal proceedings were not currently underway nor in contemplation when the documents were created.

The Court of Appeal disagreed and said the documents were not protected by legal advice privilege but were protected by litigation privilege. They reasoned that the documents where created for the dominant purpose of avoiding criminal proceedings and although the criminal proceedings where not underway the allegations meant that litigation between the Fraud Office and Eurasian could be seen to be likely.

This decision is an important one in protecting lawyer-client confidentiality. Parties should not be concerned about seeking legal advice in situations such as in this case where they are worried about illegality and should not have to fear this advice and any ancillary documents could later have to be disclosed.

Top tip: if you are concerned with non-compliance or illegality in your business, get legal advice on how to proceed.

For advice on disputes in general and litigation matters, please contact David Anderson, head of our Litigation department.