Michael Zander QC considers the Court of Appeal’s recent decision in SFO v ENRC
The reach of legal professional privilege has been widened by the Court of Appeal’s important decision in The Director of the Serious Fraud Office v Eurasian Natural Resources Corporation Ltd v Law Society [2018] EWCA Civ 2006, [2018] All ER (D) 05 (Sep) (Also see ‘SFO v ENRC: the right outcome?’ NLJ, 2 November 2018).
The defendant company (ENRC) claimed privilege for documents generated during investigations into its activities by its solicitors and forensic accountants following allegations of fraudulent practices raised by a whistle blower. The documents in issue included notes made by ENRC’s outside solicitors of some 184 interviews, including with its current and former employees, officers of the company or of its subsidiaries, and with suppliers and other third parties with whom they had had dealings. The Serious Fraud Office (SFO) contended that the documents were not the subject of legal professional privilege.
At first instance, Mrs Justice Andrews agreed with
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