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Published: Sunday June 11, 2017

Recent decision - litigation privilege in internal investigations

A recent decision made in  the case of SFO v ENRC [2017] EWHC 1017  wI’ll be of particular interest to those involved in internal investigations.

Mrs Justice Andrew disallowed a claim for privilege in a case which involved allegations of corruption by a member of ENRC staff.

After ENRC became aware of potential corrupt behaviour within its organisation they tasked external solicitors to investigate which in turn led to the opening of exchanges with the SFO.

This led , in time to notices being issued by the SFO which compelled ENRC to produce a range of documents ,including notes of meetings and interviews with witnesses, collected in the course of their investigation. ENRC resisted claiming litigation privilege .

litigation privilege is far wider than legal privilege and includes documents collected where “litigation either already exists or is in reasonable contemplation”.

In her judgement  Mrs Justice Andrews made a clear distinction between investigation and prosecution stages of criminal proceedings. In short she decided that the undertaking of an investigation does not  in itself mean that proceedings will follow. She concluded that for documents to be covered by litigation privilege, the documents “had to be produced in contemplation of the conduct of litigation”.

In essence this decision highlights the importance of adopting a strategic approach to the investigative process ensuring that all decisions are recorded and explained as these notes and the associated documents may need to be disclosed. Additionally it also supports our view on  the use of appropriate tactics in relation to evidence seeking interactions.

https://www.skadden.com/insights/publications/2017/05/english-court-questions-the-applicationwork 

Bob Pointer is the founder of The Centre for Investigative Learning and the creator of a 10 step Internal Investigations and “investigative conversations” model. This model has been created specifically for both the public and private sector and has been delivered across 4 continents.

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