Serious Fraud Office (SFO) v Eurasian Natural Resources Corp. Ltd [2018] EWCA Civ 2006 (05 September 2018 )

Serious Fraud Office (SFO) v Eurasian Natural Resources Corp. Ltd [2018] EWCA Civ 2006 (05 September 2018 )

Legal advice privilege does not extend to communications between lawyers and employees of a corporate client unless those employees are specifically authorised to seek and obtain legal advice on behalf of the company. Litigation privilege does not apply unless adversarial litigation is reasonably in contemplation and the dominant purpose of the documents is for that litigation. In this case, the documents were not privileged as the requirements for both legal advice and litigation privilege were not met.

Citation
[2018] EWCA Civ 2006
Parties
Claimant / Respondent: THE DIRECTOR OF THE SERIOUS FRAUD OFFICE; Defendant / Appellant: EURASIAN NATURAL RESOURCES CORPORATION LIMITED; Intervener: THE LAW SOCIETY
Jurisdiction
England and Wales
Procedural Posture
Civil Appeal / Court of Appeal Judgment on Appeal From High Court
Outcome
Appeal dismissed
Legal Topics
Legal Professional Privilege, Litigation Privilege, Legal Advice Privilege, Corporate Investigations, Disclosure, Criminal Investigations
Civil Procedure Criminal Law Corporate Law Legal Professional Privilege Litigation Privilege Legal Advice Privilege Corporate Investigations Disclosure +1 more

Case Brief

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Parties

THE DIRECTOR OF THE SERIOUS FRAUD OFFICE

Claimant / Respondent

EURASIAN NATURAL RESOURCES CORPORATION LIMITED

Defendant / Appellant

THE LAW SOCIETY

Intervener

Procedural Posture

Civil Appeal / Court of Appeal Judgment on Appeal From High Court

Legal Issues

  1. 1 Whether documents generated during internal investigations by ENRC's solicitors and forensic accountants are protected by legal advice privilege and/or litigation privilege.
  2. 2 Whether communications between lawyers and employees of a corporate client are covered by legal advice privilege.
  3. 3 Whether litigation privilege applies where criminal proceedings are not yet reasonably in contemplation.

Ratio Decidendi

Legal advice privilege does not extend to communications between lawyers and employees of a corporate client unless those employees are specifically authorised to seek and obtain legal advice on behalf of the company. Litigation privilege does not apply unless adversarial litigation is reasonably in contemplation and the dominant purpose of the documents is for that litigation. In this case, the documents were not privileged as the requirements for both legal advice and litigation privilege were not met.

Court Disposition

Appeal dismissed

Orders

  • Declarations granted that the documents in the first, second and fourth categories are not privileged.