The SFO’s privilege battles reaches the Court of Appeal

ENRC’s highly anticipated challenge to Andrews J’s High Court decision in the case of SFO v ENRC was recently heard over three days in the Court of Appeal.

The appeal centred on two categories of documents, which Andrews J had found not to be covered by LPP:

• Notes of interviews between ENRC’s solicitors and various employees and ex-employees of ENRC (and its subsidiaries).
• Documents generated by forensic accountants as part of a “books and records review”.

During the appeal ENRC made several arguments in respect of litigation privilege, but of particular interest were their submissions on legal advice privilege. These essentially centred on how the Court of Appeal’s decision in Three Rivers District Council v Governor and Company of the Bank of England (No.5) [2003] EWCA Civ 474 (“Three Rivers 5”) should be interpreted. Courts have on several occasions treated the case as having created a general rule that in a corporate context only those employees who are authorised to seek and/or receive legal advice on behalf of the company can be considered to be part of the ‘client’ for the purposes of legal advice privilege. ENRC’s argument is that the case should be limited to its own unique and unusual facts, and that the proper definition of the client for the purposes of legal advice privilege should be one which extends to any employee authorised by the company to provide information to the lawyers (or ex-employee so authorised during the course of their employment).

ENRC argued that not only could the Court adopt such a definition in view of its proposed treatment of Three Rivers 5, but that it should do so for various policy reasons. The Law Society, which was given permission to intervene in the appeal, focussed in particular on this aspect in their submissions. Included among the justifications advanced by ENRC and the Law Society were the following:

• The current position undermines the justification for legal advice privilege: that clients should be free to tell their lawyers everything, safe in the knowledge that the communications will always be confidential and free from disclosure, so that their lawyers are in a position to provide the best possible advice. Without this, the ability to provide proper advice is adversely affected.
• Often the only people within a company who have knowledge of facts relevant to the advice being provided by the lawyer will be outside the narrow client group.
• The current position is inconsistent with other common law jurisdictions, which have either interpreted Three Rivers 5 in the way suggested by ENRC or have refused to follow it at all. This discrepancy creates particular problems for corporates which operate in more than one jurisdiction.

If ENRC were to succeed on this particular aspect of the appeal, the implications would be significant. All internal investigation interviews with employees (and ex-employees) of a corporate client would be covered by legal advice privilege, so long as the employee was authorised by the company to provide information to the lawyers and the interview was being conducted for the purpose of the lawyer advising the corporate client.

Judgment is not expected until September or October, until which time the law remains as set out in Andrews J’s original decision.

Further information

Should you have any questions about the issues covered in this blog, please contact a member of our Criminal Law team.