Serious Fraud Office v Eurasian Natural Resources Corporation

Serious Fraud Office v Eurasian Natural Resources Corporation [2017] EWHC 1017 was a civil claim brought by the SFO challenging ENRC’s claim to 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 Three Rivers No. 5 v of who constitutes the “client” when it comes to legal advice privilege; it traversed similar ground to the RBS Rights Issue Litigation

The Judge rejected all of ENRC’s claims to privilege, holding that criminal litigation privilege only arises in limited circumstances, far more rarely than in a civil litigation. The court found:

• 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;
• litigation privilege applies only to documents prepared for the dominant purpose of conducting litigation, not to those produced to obtain advice in anticipation of 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, Three Rivers v 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.

This decision is likely to have profound consequences on the practice of corporate internal investigations in a civil and criminal context and self-reporting in the criminal context.

The full judgment is available here.