Serious Fraud Office (SFO) v Eurasian Natural Resources Corp. Ltd

Serious Fraud Office (SFO) v Eurasian Natural Resources Corp. Ltd

The Court of Appeal held that litigation privilege applied to the documents generated by ENRC’s lawyers and forensic accountants because, by the time of their creation, criminal proceedings were reasonably in contemplation and the dominant purpose was to resist or avoid such proceedings. The court found that the High Court judge erred in her approach to the facts and law regarding the dominant purpose and contemplation of litigation. However, the court upheld the restrictive approach to legal advice privilege as set out in Three Rivers (No. 5), holding it was bound by that authority.

Parties
Claimant / Respondent: Director of the Serious Fraud Office; Defendant / Appellant: Eurasian Natural Resources Corporation Limited; Intervener: The Law Society
Jurisdiction
England and Wales
Judgment Date
05 September 2018
Procedural Posture
Civil Appeal / Court of Appeal Judgment on Appeal From High Court
Outcome
Appeal allowed in part, dismissed in part
Legal Topics
Legal Professional Privilege, Litigation Privilege, Legal Advice Privilege, Corporate Investigations, Disclosure of Documents
Civil Procedure Evidence Criminal Law Legal Professional Privilege Litigation Privilege Legal Advice Privilege Corporate Investigations Disclosure of Documents

Case Brief

Summary, issues, holding and outcome

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Parties

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 corporate employees and lawyers attract legal advice privilege
  3. 3 Whether litigation privilege applies to documents created in anticipation of criminal proceedings

Ratio Decidendi

The Court of Appeal held that litigation privilege applied to the documents generated by ENRC’s lawyers and forensic accountants because, by the time of their creation, criminal proceedings were reasonably in contemplation and the dominant purpose was to resist or avoid such proceedings. The court found that the High Court judge erred in her approach to the facts and law regarding the dominant purpose and contemplation of litigation. However, the court upheld the restrictive approach to legal advice privilege as set out in Three Rivers (No. 5), holding it was bound by that authority.

Court Disposition

Appeal allowed in part, dismissed in part

Orders

  • Declarations of the High Court that documents in Categories 1, 2, and 4 (save for two emails) are not covered by litigation privilege are set aside; those documents are privileged.
  • Appeal otherwise dismissed.