The High Court has ruled that documents prepared by mining giant Eurasian Natural Resources Corporation (ENRC) in relation to a Serious Fraud Office (SFO) investigation were not protected by legal professional privilege (LPP).
Signature Litigation client ENRC has announced its intention to appeal the decision, signalling an extension to the long-running dispute with the SFO, which began in 2013.
The ruling relates to a criminal investigation by the SFO which alleged fraud, bribery and corruption on the part of ENRC. As part of the investigation, the SFO requested that ENRC produce relevant documents. ENRC claimed these documents were protected by LPP and were therefore justified in resisting the request.
But in the judgment, Justice Andrews ruled that the SFO was warranted in its request: ‘There is a recognised public interest in the SFO being able to go about its business of investigating and prosecuting crime; and the sort of evidence which one would expect to be found in the Disputed Documents is likely to be of considerable value to its current investigation.’
An ENRC spokesman stated: ‘We are very surprised by this ruling and we will appeal today’s decision because the effect of this judgment is that a party who wishes to consult a lawyer in relation to an SFO dawn raid or criminal investigation is not entitled to the protections afforded by litigation privilege.’
ENRC was represented by Signature Litigation partner Graham Huntley, who instructed Fountain Court Chambers’ Richard Lissack QC and Tamara Oppenheimer in addition to Outer Temple Chambers’ Saaman Pourghadiri. Eversheds Sutherland acted on behalf of the SFO, and instructed Bright Line Law’s Jonathan Fisher QC and Blackstone Chambers’ James Segan and Eesvan Krishnan.
Huntley commented: ‘This judgment for the first time signals that litigation privilege will be unlikely to protect that legal work, meaning that genuine attempts by clients to investigate allegations will have to be embarked upon knowing that privilege will not cover whatever is produced.’
The ruling follows a decision by the senior courts costs office to allow ENRC to have multimillion-pound bills from Dechert assessed after the mining company claimed it had been overcharged. ENRC initially hired Dechert in 2011 in relation to the company’s self-reporting process ahead of the SFO’s investigation.