Only months after its decision in Re the RBS Rights Issue Litigation,(1) the High Court has provided another landmark judgment reaffirming the narrow scope of legal professional privilege.(2) In proceedings between the Serious Fraud Office (SFO) and Eurasian Natural Resources Corporation Limited (ENRC), ENRC unsuccessfully attempted to protect documents created during internal investigations into suspected bribery and corruption, claiming legal professional privilege.
While expanding its operations into Africa in 2009/2010, ENRC became aware of unsubstantiated allegations of corrupt practices by target companies that it sought to acquire and the individuals behind those entities. Accordingly, it instructed DLA Piper LLP (DLA) and then Dechert LLP to investigate allegations of "corruption and financial wrongdoing" by its subsidiary SSGPO. ENRC also instructed Forensic Risk Alliance (FRA) to examine various books and records to identify regulatory or compliance issues and propose improvements.
This claim, brought by the SFO, arose against a background of a lengthy and still ongoing criminal investigation by the SFO, which itself was preceded by equally lengthy dialogue, beginning in August 2011. The relief sought, and subsequently granted by Justice Andrews, was for a declaration that certain of the documents generated between 2011 and 2013 by ENRC's external solicitors and accountants relating to ENRC and its subsidiaries' operations were not subject to legal professional privilege.
There were four categories of disputed documents:
- For litigation privilege or alternatively legal advice privilege ‒ notes taken by Dechert LLP between August 2011 and March 2013 of evidence provided to it by unnamed individuals within ENRC, its subsidiaries such as SSGPO, suppliers and other third parties as part of Dechert's investigations into ENRC's business practices in Kazakhstan and parts of Africa (Category 1 documents).
- For litigation privilege only ‒ materials generated by FRA as a part of "books and records" reviews across Europe, Kazakhstan and Africa to identify systems and controls weaknesses and potential improvements, carried out between May 2011 and January 2013 (Category 2 documents).
- For legal advice privilege or alternatively litigation privilege ‒ documents indicating or containing factual evidence presented by Dechert at material times to ENRC's nomination and corporate governance committees and/or the board on March 14-15 2013 (Category 3 documents).
- For litigation privilege and legal advice privilege ‒ 17 documents referred to in a letter sent to the SFO by Fulcrum Chambers, which succeeded Dechert as ENRC's legal adviser, which independent counsel had determined did not attract legal professional privilege (Category 4 documents).
Was litigation privilege available?
Litigation privilege can protect communications between parties and their solicitors or third parties for the purpose of obtaining information or advice in connection with existing or contemplated litigation as long as, at the time of the communication:
- litigation is in progress or reasonably in contemplation (ie, not necessarily more likely than not, but more than a "mere possibility" – there must be a "real prospect");(3)
- it is made with the sole or dominant purpose of conducting the actual or anticipated litigation; and
- the actual or anticipated litigation is adversarial, not merely inquisitive, in nature.
In the circumstances, ENRC's claims to litigation privilege failed on all three counts.
At the first hurdle, ENRC was unable to satisfy the court that a criminal prosecution was reasonably in prospect in circumstances where the evidence did not even establish that ENRC believed at the time that it was implicated either in wrongdoing or in a lack of proper internal controls and safeguards against bribery and corruption (paragraph 162).
There was also a distinction to be drawn between when criminal, as opposed to civil, litigation could be reasonably in prospect. In the case of the former, there must be "enough" knowledge by the prospective defendant of what investigations are likely to unearth before it can say that it realistically expects a prosecutor to be satisfied that it has enough material to stand a good chance of securing a conviction. A prosecutor cannot prosecute without satisfying itself that both the evidential threshold to prosecute and the public interest requirement are met.
The court also commented that it is the state of mind of the individual or company that is relevant when determining whether litigation is reasonably in prospect, not that of the lawyers advising that individual or company ‒ even where that advice indicates that the documents in question are subject to litigation privilege, however "robustly" that view is held (paragraph 123).
As to the purpose of its communications, the court found that ENRC had instructed DLA/Dechert and FRA on a fact-finding mission rather than to advise on anticipated criminal proceedings. The information was not gathered to inform a defence brief; far from it. They were to prepare for responding to a possible investigation or dawn raid by the SFO and to identify compliance and regulatory issues. This was not enough.
Finally, the court was satisfied that even the SFO's formal investigation was not adversarial for the purposes of satisfying a claim for litigation privilege. These were preliminary investigations to inform the SFO in deciding whether to prosecute ‒ a decision it was never in a position to take at the relevant time.
Accordingly, ENRC's claims to privilege failed in respect of Categories 1, 3 and 4.
Was legal advice privilege available?
Legal advice privilege, by contrast to litigation privilege, requires no contemplation of litigation and attaches to all communications between the client and its lawyers, acting in their professional capacity, in connection with the provision of legal advice. Its scope has been decidedly narrowed in recent judgments such as Three Rivers (No 5)(4) and Re the RBS Rights Issue Litigation, the latter of late last year.
This claim also failed, save for the documents in Category 3, which were sufficiently part of the "continuum of confidential communication between lawyer and client", appearing from the evidence to have contained legal advice as well as reports of factual findings.
Otherwise, turning to Category 1 documents, for example, there was no evidence that any of the persons interviewed (and whose interviews were recorded in the documents in question) was authorised by ENRC to seek or receive legal advice on its behalf, or that the documents arose for the provision of legal advice.
Unsurprisingly, following Re the RBS Rights Issue Litigation, the fact that the notes were prepared by lawyers was determined by the court to be of no help in making a claim for legal advice privilege. The documents were factual accounts of things said in each case rather than legal advice sought or provided (by this finding, lawyers' working papers privilege was also excluded).(5)
The decision sheds further light on the application of legal professional privilege, in particular to documents produced during internal investigations. It also serves as a reminder that the English courts continue to favour a narrow approach to legal professional privilege as a whole.
While some commentators suggest that the judgment risks discouraging corporates from reporting findings of wrongdoing to the SFO, the absence of knowledge of wrongdoing by either ENRC or the SFO was key to the court's decision on the availability of litigation privilege in the circumstances of this case. There is a question as to whether the decision might have differed in the event that knowledge had been more evident on the facts.
It is also of relevance that DLA and then Dechert were instructed to investigate and gather information, rather than to advise on a possible defence to future anticipated allegations of wrongdoing. Parties considering instigating internal investigations in anticipation of criminal or regulatory action should therefore consider carefully not only how those investigations should be managed, but also the scope of instructions to external legal advisers.
For further information on this topic please contact Maria Petzsch or Richard Burger RPC by telephone (+44 20 3060 6000) or email ([email protected] or [email protected]). The RPC website can be accessed at www.rpc.co.uk.
(1) Re the RBS Rights Issue Litigation  EWHC 3161.
(2) Director of the Serious Fraud Office v Eurasian Natural Resources Corporation Ltd  EWHC 1017.
(3) USA v Philip Morris  EWHC 3028 (Comm) at .
(4) Three Rivers District Council v The Governor & Company of the Bank of England (No 5)  QB 1556; Three Rivers District Council v The Governor & Company of the Bank of England Rev 1  EWCA Civ 474.