UK appeals court restores attorney-client privilege in internal investigations

The UK Court of Appeal on Wednesday overturned a lower court’s ruling and restored the attorney-client privilege to protect internal investigations from discovery by the Serious Fraud Office.

In a case involving London-listed Eurasian Natural Resources Corporation (ENRC), the appellate court said those who retain counsel “to investigate the circumstances of an alleged offense” shouldn’t be “denied the benefit of litigation privilege.”

The ruling reversed a High Court decision in May 2017 that interview notes created during an internal investigation weren’t protected by the legal professional privilege.

The SFO’s criminal investigation into ENRC started in April 2013. It was triggered by whistleblower complaints about the mining company’s operations in Kazakhstan and Africa.

ENRC claimed the privilege against the SFO’s requests for employee interview notes and other documents produced during an earlier internal investigation conducted by outside counsel.

The case went to the High Court in 2017 after the SFO decided to fight what it saw as spurious privilege claims that led to protracted discovery negotiations with target companies.

But the legal community criticized the High Court’s ruling and ENRC appealed.

The appellate court Wednesday agreed with the company.

The FCPA Blog | September 6, 2018