Clarity on Legal Professional Privilege from the Court of Appeal

In The Director of The Serious Fraud Office v Eurasian Natural Resources Corporation Limited [2018] EWCA Civ 2006 the Court of Appeal was asked to determine whether certain documents created during the course of an internal company investigation were subject to legal professional privilege.

In April 2013, the Serious Fraud Office ('SFO') commenced a criminal investigation into Eurasian Natural Resources Corporation Ltd ('ENRC') and its subsidiaries including its officers. ENRC, a company incorporated in England & Wales, is part of a group of companies working in the mining and natural resources sector. The investigation centered around allegations of fraud, bribery and corruption given that the regions in which ENRC conducted its business were recognised as being high risk in terms of being susceptible to public sector bribery and corruption. ENRC were initially represented by Dechert LLP in respect of the SFO investigation.

Further to the Bribery Act 2010 coming into force in July 2011, the SFO released a joint Guidance with the Crown Prosecution Service which set out the approach to be taken by the authorities in prosecuting a corporate body for a criminal offence.

As part of the investigation into ENRC, the SFO issued a written notice requiring ENRC to produce certain documents under its powers under s.2 (3) of the Criminal Justice Act 1987 (‘CJA 1987’). However, s. 2 (9) CJA 1987 states that ‘A person shall not under this section be required to disclose any information or produce any document which he would be entitled to refuse to disclose or produce on grounds of legal professional privilege in proceedings in the High Court….’.

What is Legal Professional Privilege?

Legal Professional Privilege (‘LPP’) is a fundamental common law right which protects an individual from disclosing certain documents that contain confidential legal communications including legal advice. An assertion as to privilege is not conclusive and may have to be determined by a Court. The party claiming privilege must provide evidence which is specific but without disclosing the matters which the claim to privilege is protecting.

Background

In 2009/2010, ENRC was notified of allegations of criminal activity in relation to an African company it was seeking to acquire, Camrose Resources Limited. Camrose had been engaged in litigation with First Quantum Minerals who alleged illegality in connection with a copper mine which had purportedly been unlawfully appropriated by the government of an African country and then sold to a company linked to an acquaintance of that country’s president.

In late 2010, ENRC had received an email from a whistle-blower alleging corruption and bribery. In light of this email, a decision was taken by the board of directors to commence an internal investigation. ENRC appointed DLA Piper UK LLP to conduct the investigation. In addition, the company also wanted a review of its books and records and so ENRC also instructed a firm of accountants, Forensic Risk Alliance to complete this review.

It was during the course of the internal investigation and the financial review that documents were created (the ‘Disputed Documents’) which ENRC say do not have to be disclosed or produced to the SFO on the grounds of LLP.

The Disputed Documents fell into 4 categories;

1. Notes take by Dechert LLP when they asked individuals including employees about the events being investigated. 184 documents were identified.
2. Material generated by Forensic Risk Alliance (the forensic accountants).
3. Documents indicating or containing the factual evidence presented by the Partner at Dechert, who had conduct of the investigation at all times, to ENRC’s Nomination and Corporate Governance Committee and/or the ENRC board on 14 and 15 March 2013.
4. 17 documents referred to in a letter dated 22 August 2014 sent to the SFO by Fulcrum Chambers (who succeeded Dechert as ENRC’s legal advisers), which independent counsel had determined did not attract LPP.

First Instance Decision

The SFO sought a declaration from the High Court that certain documents were not the subject of legal professional privilege.

The case of Three Rivers District Council and Others v Governor and Company of the Bank of England (No 6) [2004] UKHL 48 sets out the legal principles in relation to legal professional privilege, that ‘communications between parties or their solicitors and third parties for the purpose of obtaining information or advice in connection with existing or contemplated litigation are privileged, but only when the following conditions are satisfied:

(a) litigation must be in progress or in contemplation;

(b) the communications must have been made for the sole or dominant purpose of conducting that litigation;

(c) the litigation must be adversarial, not investigative or inquisitorial.’

Mrs Justice Andrews ruled that ‘At no stage was the purpose of the internal investigation anything to do with the conduct of future criminal proceedings that might be bought against ENRC…..Regardless of when the evidence was obtained, the dominant purpose of obtaining evidence ….was not to use the information for the purposes of constructing a defence or to obtain legal advice relating to the defence of a future criminal prosecution. ENRC’s evidence goes nowhere near establishing this.’ She did allow, legal advice privilege over the documents in Category 3.

Appeal

ENRC appealed the decision of Andrews J on the basis that ‘she misinterpreted the Court of Appeal’s decision in Three Rivers (No.5) as to the kind of documents that could be the subject of legal advice privilege.’

In respect of litigation privilege, ENRC argued that the Judge ‘wrongly held that (i) no criminal prosecution was reasonably contemplated and (ii) none of the Documents was created with the sole or dominant purpose of defending anticipated criminal proceedings.’

Court of Appeal Decision

After an extensive examination of the issues, Sir Brian Leveson, Sir Geoffrey Vos and Lord Justice McCombe granted the Appeal sought by ENRC and ruled that ‘In both the civil and criminal context, legal advice given so as to head off, avoid or even settle reasonably contemplated proceedings is as much protected by litigation privilege as advice given for the purpose of resisting or defending such contemplated proceedings.’

The Judgment went onto say ‘ENRC never actually agreed to disclose the materials it created in the course of its investigation to the SFO. It certainly gave the SFO repeated indications that it would make “full and frank disclosure” and that it would produce its eventual report to the SFO. But it never actually committed to producing its interviews and intermediate work product to the SFO.’

In conclusion, the Court of Appeal held that ‘not only was a criminal prosecution reasonably in ENRC’s contemplation, but the judge ought also to have determined that the Category 1 documents were bought into existence for the dominant purpose of resisting or avoiding those (or some other) proceeding.’ and ‘The same can be said of the FRA documents in Categories 2 and 4.’

The importance of the Court of Appeal ruling means that in practice, clients and legal professionals should be able to have comfort that legal professional privilege will apply where early advice is sought and given prior to litigation being commenced or in progress.

Click here to find out how Brett Wilson LLP’s specialist solicitors can assist your company in respect of bribery and corruption investigations.