The Court of Appeal has confirmed that it will hear a case which, at first instance, required a mining company to hand over internal documents which the Serious Fraud Office claimed were not protected by legal privilege.
The Serious Fraud Office alleges bribery and corruption against Eurasian Natural Resources Corporation (ENRC) and has sought to obtain documents to support their allegation. ENRC claims that the internal documents were prepared in connection with the investigation and are covered by legal privilege. ENRC denies any wrongdoing.
In May, the initial High Court ruling produced a controversial result; ruling in favour of the Serious Fraud Office and ordering that documents prepared for ENRC’s own internal investigation are not covered by legal privilege. The High Court stated that privilege applies only if ENRC ‘anticipated’ actual criminal prosecution and should protect only those documents prepared with the sole or dominant purpose of conducting litigation.
The appeal is of importance to many, as a ruling in favour of the Serious Fraud Office could result in internal documents relating to criminal investigations being handed over to assist prosecutions. The Court of Appeal however, has said that an appeal by Eurasian Natural Resources Corporation has a ‘real prospect of success.’
’This was a decision which in our view seems to penalise ENRC for responsibly taking steps to thoroughly investigate the allegations so that it could properly understand what had happened and what should be done. It certainly would not seem to encourage corporate transparency and good governance going forward.’
The wide-ranging implications of a decision potentially watering down the right of legal privilege will undoubtedly attract attention from many. The Law Society, in particular, has spoken out against the initial ruling, describing it as ‘alarming’ and welcoming the appeal. Christina Blacklaws, vice president of the Law Society, said:
’The original ruling gave a narrow interpretation of legal advice privilege and litigation privilege. There are worrying ramifications for corporations trying to do the right thing in conducting internal investigations and self-reporting potential issues to authorities,’
’It is important that corporate and other clients have certainty about what is covered by privilege. We hope this appeal will provide the reassurance clients are seeking. We believe the right to confidential communication between clients and their lawyers must be protected and we are taking a very close interest in the progress of the appeal.’