Side view of corridor and docks.

On the first day of Christmas, the High Court gave to me…a privilege in E-N-RC

03 December 2018. Published by Davina Given, Partner

With Advent upon us, and Christmas on the horizon, RPC takes a musical look back at the most important English judgments of 2018. Liability for all failures of rhythm and rhyme is hereby excluded.

The 2017 decision of Mrs Justice Andrews in Serious Fraud Office v Eurasian Natural Resources Corporation[1]  caused some consternation among the legal community, finding as it did that:

  • In the context of a criminal investigation, litigation privilege applied only once the client company was aware that there was a reasonable prospect of being prosecuted.This meant that a company being investigated by the Serious Fraud Office would not be able to talk to its employees or conduct any investigations itself with the protection of legal privilege until a very late stage;

  • Privilege did not apply to documents created with the intention of being shown to the other side; and

  • Documents created for the purpose of avoiding contemplated litigation did not attract privilege.

This was distinguished by Bilta (UK) v Royal Bank of Scotland[2] in relation to an HMRC investigation but then followed by the Court of Appeal in R v Jukes[3] in relation to a Health & Safety Executive investigation.  Fortunately for those claiming privilege, however, in the most eagerly anticipated judgment of 2018 the Court of Appeal[4] over-turned most of Andrews J's judgment, restoring the protection of litigation privilege to companies under investigation and the Serious Fraud Office withdrew its appeal to the Supreme Court.  Sighs of relief all round among litigators. 

We have therefore reverted to the post-Three Rivers No 5[5] position, whereby confidential communications (i) between client and lawyer seeking or giving legal advice; and (ii) between client and lawyer or between client/lawyer and a third party for the dominant purpose of adversarial proceedings in reasonable contemplation (including settlement of those proceedings) are privileged. 

Regrettably, the Court of Appeal did not (and, strictly speaking, could not) change the Three Rivers No 5[6] definition of the "client", which in a corporate context is limited to those authorised to give and receive legal advice on behalf of the company.  This means that any information gathering done by a company (whether or not by lawyers) that is not done in the shadow of potential litigation or investigation remains at risk of being subject to later disclosure.  Perhaps a litigator's Christmas list should include the case in which the Supreme Court will take a different view on the meaning of the "client" for privilege purposes.

For RPC's take on the Court of Appeal's decision, see here.  For a broader summary of the principles of legal professional privilege (before the Court of Appeal's decision in ENRC), see here.

The Twelve Judgments of Christmas (2018)

On the first day of Christmas, the High Court gave to me…a privilege in E-N-RC.

On the second day of Christmas, the High Court gave to me…[to be continued]

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