Serious Fraud Office (SFO) v Eurasian Natural Resources Corp Ltd (ENRC) Judgment of the Court of Appeal 5 September 2018

A Case of “Order Being Restored”

The Court of Appeal has – by a judgment delivered on Wednesday 5 September – restored the historical and conventional position as to when and in what circumstances a party can assert Legal Professional Privilege, in particular, Litigation Privilege in relation to an investigation into circumstances that may culminate in criminal proceedings being taken by a regulator.

The case involved certain documents generated during investigations undertaken by solicitors and forensic accountants acting on behalf of ENRC. ENRC had resisted disclosure of documents to the SFO on the basis of Legal Professional Privilege. It, therefore, fell to the court to decide if the documents were protected by Legal Professional Privilege or not. Many commentators believe that the original decision seriously undermined the application of Legal Professional Privilege to internal investigations conducted by organisations and will welcome this Court of Appeal decision, which disagreed with the Judge on a number of significant points.

Read our summary of the decision and analysis using the button above.