Legal Professional Privilege – The Bounds Revisited

On 8 May 2017 Mrs Justice Andrews DBE handed down judgment in SFO v ENRC [2017] EWHC 1017 (QB), which has significant implications for claims to legal professional privilege in the context of internal investigations. The case was listed as one of The Lawyer’s Top 20 Cases of 2017.

The judgment is available to read here.

Saaman Pourghadiri was junior counsel for the Defendant company resisting a claim by the SFO that documents, including notes of interviews taken by lawyers, were not privileged.

The judge found that the documents (save for one category) were subject to neither legal advice privilege nor litigation privilege.

In respect of litigation privilege the court found that (i) anticipation of an SFO raid, and the investigation following it, was not sufficient to engage litigation privilege; (ii) litigation privilege did not apply to documents which were only produced for advice and/or assistance in relation to litigation and not for the actual conduct of that litigation; and (iii) litigation privilege did not apply to documents created for the dominant purpose of avoiding litigation.

In respect of legal advice privilege, the court found that communications with ENRC employees (as recorded in interview notes) were not communications with the client so as to be privileged. The court also declined to find that the interview notes amounted to lawyer’s working papers.

It is anticipated that the judgment will have a significant impact on the practice of internal investigations and will likely be a boon to those bringing civil claims arising from regulatory or criminal wrongdoing.

If you would like Saaman to speak about the issues raised by the case or in relation to privilege more generally please do not hesitate to contact his clerks David Smith and Matt Sale.

News 10 May, 2017