The Court of Appeal recently handed down an eagerly awaited decision addressing, in particular, fundamental issues as to the ambit of litigation privilege in investigations.
The appeal, in ENRC v SFO, sought to overturn the High Court’s decision that various communications connected with an internal investigation (including notes of interviews and forensic accounting materials) were not protected by litigation privilege. The High Court had held that litigation privilege did not apply because a Serious Fraud Office investigation was not sufficiently adversarial for the purposes of litigation privilege, it could not be said that litigation was in contemplation, and that even if litigation was in contemplation, the documents were not created for the dominant purpose of use in the litigation.
However, the Court of Appeal reversed the decision in relation to litigation privilege, holding that litigation was in reasonable contemplation from the outset of the investigation and that the materials in question (including interview notes and forensic accounting materials) were created for the dominant purpose of resisting or avoiding contemplated criminal proceedings, and so protected by litigation privilege.
For a detailed briefing which summarises the Court of Appeal’s decision and provides key practical takeaways in relation to the application of privilege to investigations, click here.
(ENRC v SFO [2018] EWCA Civ 2006)