On May 8 2017 Justice Andrews handed down judgment in respect of the Serious Fraud Office's claim for a declaration that documents generated by forensic accountants and solicitors in the course of an internal investigation into the Eurasian Natural Resources Corporation (ENRC) were not subject to legal professional privilege and must therefore be disclosed to the authorities, pursuant to notices issued under Section 2 of the Criminal Justice Act 1987, in the course of their ongoing investigations into the allegations of commission of fraud, bribery and corruption offences by ENRC, in various jurisdictions.

The judgment clarifies that because investigation and prosecution are not part of the same amorphous process, documents generated in the investigation phase do not, by default, benefit from the protection of litigation privilege. However, Andrews did foresee that if a potential defendant learned during an investigation of facts that made it likely (rather than merely possible) that prosecution would follow the investigation, or knew of such facts beforehand, documents generated in the investigation phase may benefit from the protection afforded by litigation privilege. The judgment also clarified that where documents are generated to ascertain the accuracy of factual allegations (ie, in this case, those made by a whistleblower) or assist in securing a civil settlement to dispose of possible criminal wrongdoing, such documents are not created with the dominant purpose of preparing a defence against criminal prosecution. Rather, their dominant purpose is avoiding criminal prosecution and, therefore, they cannot be subject to litigation privilege.

For further information on this topic please contact Kathleen Harris, Sean Curran, Stuart Baker or Oliver Cooke at Arnold & Porter Kaye Scholer LLP by telephone (+44 20 7786 6100) or email ([email protected], [email protected], [email protected] or [email protected]). The Arnold & Porter Kaye Scholer LLP website can be accessed at www.apks.com.