Update: ENRC heading to the Court of Appeal

Posted on 13 October 2017 by Matthew Ewens

Update: ENRC heading to the Court of Appeal

The Order of Lord Justice Floyd, made available yesterday, confirms that ENRC have been granted permission to appeal the decision of Mrs Justice Andrews in Director of the Serious Fraud Office v Eurasian Natural Resources Corporation Ltd [2017] EWHC 1017.

The combination of that decision and an earlier ruling in the case of The RBS Rights Issue Litigation [2016] EWHC 3161 has meant a tightening of the ability of corporates to assert legal professional privilege in the context of internal investigations.

The test for litigation privilege is that the litigation must either be in progress or reasonably in contemplation at the time of the creation of the document or communication for which the protection is to be sought. The ENRC decision at first instance concluded that the mere fact that a criminal investigation had commenced did not automatically mean that litigation was therefore reasonably in contemplation. The Court's rationale for its conclusion appears in part to have been that because ENRC had previously asserted that there was no evidence upon which charges could be based, it must follow that they therefore did not at the same time contemplate litigation.

Whether that reasoning is capable of surviving further scrutiny will now be determined by the Court of Appeal, Lord Justice Floyd having found that the grounds of appeal have a real prospect of success. The potential for clarification will be welcomed by both lawyers and corporates alike, particularly as lawyers have been adopting a cautious approach to evidence gathering in internal investigations that might have criminal ramifications since the judgement, delivered in the Spring.

Given the significance of the decision it is expected that professional bodies will seek to intervene in the appeal.