In the case of Director of the Serious Fraud Office v Eurasian Natural Resources Corp Ltd (2017), the court considered for the first time the status of documents created by legal and other advisors during an internal investigation into criminal wrongdoing.

The claim was brought by the Serious Fraud Office (“SFO”) for a declaration that certain documents generated during an internal investigation undertaken by solicitors and forensic accountants into the activities of Eurasian Natural Resources Corp Ltd (“ENRC”) and its subsidiaries were not subject to legal professional privilege.

The claim was made against the background of an ongoing criminal investigation by the SFO, focused on allegations of fraud, bribery and corruption by ENRC.

ENRC disclosed a final report on the investigation to the SFO in February 2013, but not the underlying interviews or other work product. In 2013, the SFO opened a criminal investigation and requested disclosure of documents (including lawyers’ work product) and issued notices against ENRC to compel the production of documents under s.2 (3) of the Criminal Justice Act 1987 (“CJA 1987”).

ENRC argued that the documents requested were subject to litigation privilege, legal advice privilege, or both and therefore the SFO could not compel them to disclose these documents.

Mrs Justice Andrews rejected ENRC’s claim to privilege in relation to interview notes and to work product by forensic accountants assessing ENRC’s internal controls. However, she upheld the claim in relation to a presentation to the Board on the investigation findings, which also involved the giving of legal advice.

With regards to the interview notes, it was held that there was no evidence that any of the persons interviewed (whoever they were) were authorised to seek and receive legal advice on behalf of ENRC, and the communications between those individuals and the lawyers were not communications in the course of conveying instructions on behalf of the corporate client.

As to the slides and meeting notes, these contained or revealed advice by the lawyers as to “potential allegations of criminality and the steps the company should take in respect of those potential allegations...” If the solicitor giving the presentation had simply been reporting his fact findings to the Board, and there was no legal advice involved, the minutes recording what transpired at the meeting at which the fact findings were reported to the client would not be subject to legal advice privilege. However, the evidence in respect of the meetings indicated that the law firm had been instructed to give legal advice to the Board about certain specific matters consequential on their findings. Therefore the slides had been prepared for the specific purpose of giving legal advice to ENRC and are privileged. Mrs Justice Andrews confirmed this was the case even if reference was made to the meeting notes and slides in factual information, or findings that would not otherwise be privileged as they are part and parcel of the confidential solicitor-client communication, and also fall within the ambit of the protection of solicitors’ work product.