Legal professional privilege (LPP) was thrown a lifeline last month, when mining giant Eurasian Natural Resources Corporation (ENRC) was granted the right to appeal against a controversial order to disclose documents in a Serious Fraud Office (SFO) investigation.
ENRC has been the subject of a long-running investigation by the SFO relating to alleged fraud, bribery and corruption. In May, the High Court ruled that certain documents prepared by ENRC in relation to the probe were not covered by LPP and therefore had to be disclosed.
In her May judgment, Justice Andrews held that there was ‘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’.
On a wider point that has irked the industry, Justice Andrews also ruled that ‘legal advice privilege attaches only to communications between the lawyer and those individuals who are authorised to obtain legal advice on that entity’s behalf’, and not conversations between lawyers and other employees of the client.
At the time, an ENRC spokesperson said the company would appeal the 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’.
Disputes partners have criticised the decision, with the consensus being that the erosion of privilege – or not extending the scope of privilege in this context – makes it a difficult environment for clients to operate in. Simmons & Simmons senior partner Colin Passmore said: ‘If you talk to lawyers who advise corporates, they find the whole issue very difficult. How can you gather information when employees of a company are not regarded as part of the client?’
Keystone Law white-collar crime specialist Claire Shaw warned that the loss of privilege for this type of communication will act as a big deterrent to clients wishing to remain in the country. ‘It will result in the big multinationals shifting their work away from the UK. For companies that are committed to the UK jurisdiction, it could also have a dramatic impact for them in terms of not self-reporting.’
Signature Litigation had previously been representing ENRC throughout the investigation, led by founder Graham Huntley. However, Hogan Lovells took over the mandate in May, with commercial litigation partners Chris Hardman and Michael Roberts set to advise ENRC as it advances its appeal.