Legal professional privilege (LPP) is a fundamental human right and a foundational pillar on which the adversarial litigation system is built. LPP includes both legal advice privilege, which applies to communications in the course of giving and receiving legal advice, and litigation privilege. Litigation privilege applies to documents created: (i) in relation to litigation that is in progress or reasonably in contemplation; (ii) with the sole or dominant purpose of conducting the litigation; and (iii) in relation to litigation that is adversarial, not investigative or inquisitorial (per Lord Carnworth in Three Rivers (No 6)).

Once recognised, LPP is virtually absolute and can only be abrogated in the narrowest of circumstances. However, recent decisions by the English court have called into question the standard to be applied for the recognition of privilege in documents created by companies and their external legal advisers in the course of internal investigations, leaving companies with little confidence that the fruits of their investigations will not be used against them by regulators or civil opponents.

This article considers this issue in light of the decision of Andrews J in The Director of the Serious Fraud Office v. Eurasian National Resources Corporation Ltd (ENRC), and the more recent decision of chancellor Vos in Bilta (UK) Ltd (in Liquidation) v. Royal Bank of Scotland PLC, which was handed down on 20 December 2017. Described as “a blow” to LPP and leading one commentator to ask “is there any privilege in investigations anymore?”, the ENRC decision set the low watermark for the court’s protection of LPP in the context of investigations. By contrast, the Bilta decision reflected a more traditional view of litigation privilege.

Apr-Jun 2018 issue

Kirkland & Ellis LLP