LEGAL COMMENT: Court of Appeal rules against Serious Fraud Office in landmark legal privilege case

In a case watched closely by both the legal and corporate industries, mining group ENRC has won a legal victory against the Serious Fraud Office..

In a case watched closely by both the legal and corporate industries, mining group ENRC has won a legal victory against the Serious Fraud Office (SFO) that means it will not be forced to hand over confidential documents in an ongoing investigation into alleged bribery and corruption.

Weightmans Partner Mark Surguy comments:

"The Court of Appeal has overturned a High Court decision that documents prepared by ENRC’s law firm were not covered by litigation and legal professional privilege, meaning the SFO will not now be able to review them as part of their investigation. The law has not changed but the case is an example of how difficult it can be in certain cases to be sure that privilege arises, and is a reminder that privilege is increasingly the subject of challenge. It was hoped that the case would clarify the extent to which witness statements taken from ex-employees in an investigation are subject to privilege – this point has not been settled for sure but there is a strong indication from a superior court that these statements will not be protected.
"An interesting element of the case is the role of the in-house lawyer, who was employed as Head of Mergers and Acquisitions and therefore more ‘a man of business’ than a legal adviser. His activity was held by the lower court to not be subject to legal advice privilege, and the Court of Appeal did not overrule this despite the fact he was qualified to practice as a lawyer. What this shows is that it is the role of the in-house lawyer that counts, not the qualification or job title that the individual may have. Legal advice given by non-lawyers is not privileged. Legal advice given by in-house lawyers who do not have the role of confidential, professional advisor also does not attract privilege. This will always be down to the facts of the particular case and the decision is not objectionable as a matter of principle.
"It will be interesting to see whether the Supreme Court clarifies this. A suitable case will have to arise for the point to be debated further."

 For more information please contact Mark.Surguy@weightmans.com

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