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16 March 2018 / Emilie Jones , Alan Sheeley
Issue: 7785 / Categories: Features
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What’s privileged?

Alan Sheeley & Emilie Jones review the role & scope of litigation privilege in internal investigations

  • Recent cases show that the days of claiming litigation privilege over documents without fear of challenge are gone.
  • The purpose of an investigation should be set out clearly in external and internal communications.

Internal investigations are a vital risk management tool for corporate organisations. When serious allegations of wrongdoing are made, whether by a whistleblower, regulator, third party or the media, thorough investigation enables the organisation to understand what has happened, address potential exposures, improve risk management systems and manage reputational risk. Corporate focus on internal investigations has also been fuelled by the growing number of self-reporting obligations and incentives.

Against this backdrop, businesses have been troubled by recent case law perceived to erode their ability to rely on legal professional privilege to avoid disclosing documents created during investigations to parties in subsequent civil or criminal proceedings.

However, the recent decision of Bilta v RBS [2017] EWHC 3535 (Ch) demonstrates that, in appropriate circumstances, the products of a properly structured and

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MOVERS & SHAKERS

Bellevue Law—Lianne Craig

Bellevue Law—Lianne Craig

Workplace law firm expands commercial disputes team with senior consultant hire

EIP—Rob Barker

EIP—Rob Barker

IP firm promotes patent attorney to partner

Muckle LLP—Ryan Butler

Muckle LLP—Ryan Butler

Banking and restructuring team bolstered by insolvency specialist

NEWS
The Supreme Court has delivered a decisive ruling on termination under the JCT Design & Build form. Writing in NLJ this week, Andrew Singer KC and Jonathan Ward, of Kings Chambers, analyse Providence Building Services v Hexagon Housing Association [2026] UKSC 1, which restores the first-instance decision and curbs contractors’ termination rights for repeated late payment
Secondments, disciplinary procedures and appeal chaos all feature in a quartet of recent rulings. Writing in NLJ this week, Ian Smith, barrister and emeritus professor of employment law at UEA, examines how established principles are being tested in modern disputes
The AI revolution is no longer a distant murmur—it’s at the client’s desk. Writing in NLJ this week, Peter Ambrose, CEO of The Partnership and Legalito, warns that the ‘AI chickens’ have ‘come home to roost’, transforming not just legal practice but the lawyer–client relationship itself
A High Court ruling involving the Longleat estate has exposed the fault line between modern family building and historic trust drafting. Writing in NLJ this week, Charlotte Coyle, director and family law expert at Freeths, examines Cator v Thynn [2026] EWHC 209 (Ch), where trustees sought approval to modernise trusts that retain pre-1970 definitions of ‘child’, ‘grandchild’ and ‘issue’
Fresh proposals to criminalise ‘nudification’ apps, prioritise cyberflashing and non-consensual intimate images, and even ban under-16s from social media have reignited debate over whether the Online Safety Act 2023 (OSA 2023) is fit for purpose. Writing in NLJ this week, Alexander Brown, head of technology, media and telecommunications, and Alexandra Webster, managing associate, Simmons & Simmons, caution against reactive law-making that could undermine the Act’s ‘risk-based and outcomes-focused’ design
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