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Serious Fraud Office v Eurasian Natural Resources Corporation: Difference between revisions

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Serious Fraud Office v Eurasian Natural Resources Corporation (view source)

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{{cite|Serious Fraud Office|Eurasian Natural Resources Corporation|2017|EWHC|1017}} was a civil claim brought by the SFO challenging ENRC’s claim to {{tag|privilege}} in respect of various documents created in anticipation of criminal investigation and while reporting to the SFO in a self-reporting process.
{{cite|Serious Fraud Office|Eurasian Natural Resources Corporation|2017|EWHC|1017}} was a civil claim brought by the SFO challenging ENRC’s claim to {{tag|privilege}} in respect of various documents created in anticipation of criminal investigation and while reporting to the SFO in a self-reporting process.


The case considered the Court of Appeal’s controversial decision in {{Casenote|Three Rivers No. 5|}} of who constitutes the “client” when it comes to [[legal advice privilege]]; it  traversed similar ground to the [[RBS Rights Issue Litigation - Case Note|RBS Rights Issue Litigation]]
The case considered the Court of Appeal’s controversial decision in {{Casenote1|Three Rivers No. 5}} of who constitutes the “client” when it comes to [[legal advice privilege]]; it  traversed similar ground to the {{casenote|RBS Rights Issue Litigation}}.


The Judge rejected all of ENRC’s claims to {{tag|privilege}}, holding that criminal litigation privilege only arises in limited circumstances, far more rarely than in a civil litigation. The court found:
The court rejected all of ENRC’s claims to {{tag|privilege}}, holding that [[criminal litigation privilege]] only arises in limited circumstances, far more rarely than in a [[civil litigation privilege|civil litigation]]. The court found:
*an SFO raid and the processes it triggers (including an SFO investigation) are *not* adversarial litigation;  
*an SFO raid and the processes it triggers (including an SFO investigation) are *not* adversarial litigation;  
*“reasonable anticipation” of an ''investigation'' did not amount to reasonable anticipation of ''litigation'';  
*“reasonable anticipation” of an ''investigation'' did not amount to reasonable anticipation of ''litigation'';  
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*[[litigation privilege]] does not apply to documents created with the purpose of obtaining advice about how to avoid contemplated litigation.
*[[litigation privilege]] does not apply to documents created with the purpose of obtaining advice about how to avoid contemplated litigation.


As regards interview notes, {{casenote|Three Rivers|No 5}} set down a general test as to who was the client for [[legal advice privilege]]. The court also rejected ENRC’s case that the interview notes comprised lawyers’ working papers.
As regards interview notes, {{casenote1|Three Rivers|No 5}} set down a general test as to who was the “client” for [[legal advice privilege]]. The court also rejected ENRC’s case that the interview notes comprised lawyers’ working papers.


The Judge refused permission to appeal on all aspects of the decision so the application for permission (including in relation to the Judge’s approach to the evidence, which she regarded to be inadequate to substantiate the claims to privilege) will be made to the Court of Appeal.
The Judge refused permission to appeal on all aspects of the decision so the application for permission (including in relation to the Judge’s approach to the evidence, which she regarded to be inadequate to substantiate the claims to privilege) will be made to the Court of Appeal.
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