Litigation Privilege: A departure from ENRC?
Last year's High Court decision in SFO v ENRC  1 WLR 4205 caused widespread concern in the legal community as to a corporate's ability to claim litigation privilege over the output of an internal investigation conducted in the shadow of a criminal investigation by the SFO. However, in Bilta (UK) Ltd v Royal Bank Of Scotland Plc & Anor, published this week, the Chancellor of the High Court confirmed that, given the right set of facts, it remains open to parties to claim litigation privilege over documents created during an internal investigation. In Bilta, an application was made for disclosure of documents created by RBS in the course of an internal investigation into an alleged tax fraud (the "Investigation Documents"), which RBS claimed were protected by litigation privilege. For a party to be able to claim litigation privilege, the following three criteria must be satisfied:
- litigation must be in progress or in contemplation;
- the communications must have been made for the sole or dominant purpose of conducting that litigation; and
- the litigation must be adversarial, not investigative or inquisitorial.