At our seminar in Hong Kong in April we discussed the decision of the English High Court on the question of the law of privilege and how it applies to documents created for the purposes of internal investigations into criminality and regulatory misconduct.

In the case of ENRC v the Director of the SFO [2017] 1 WLR 4205 Mrs Justice Andrews decided that legal advice privilege would not apply to a large proportion of such documents because of a decision of the Court of Appeal in England and Wales in Three Rivers District Council and Others V Governor of the Bank of England (No 5) [2005] QB 1556 and that litigation privilege would not apply until quite late in the process.

The Court of Appeal has now considered this judgment and, in a judgment dated 5th September 2018 ([2018] EWCA Civ 2006), decided that the restrictive approach to privilege adopted by Mrs Justice Andrews was wrong.

Legal Advice Privilege

In relation to legal advice privilege, the Court of Appeal referred to the position that we outlined in April in the rest of the common law world. In particular, that in Hong Kong, Singapore, Australia and the United States, Three Rivers (No 5) has been held to be wrong.

The Court of Appeal referred to the judgment of the Hong Kong Court of Appeal in Citic Pacific Ltd v Secretary of State for Justice [2016] 1 HKC 157 and said that if it had been open to it to depart from Three Rivers (No 5) it would have been in favour of doing so.

The Court of Appeal held that it was not open to it to depart from Three Rivers (No 5), but we anticipate that in view of the Court’s reasoning, the Supreme Court will do so when it gets the next opportunity. We therefore anticipate that English law will be the same as the law of Hong Kong within the not too distant future.

Litigation Privilege

Until the United Kingdom Supreme Court makes the decision relating to legal advice privilege, as referred to above, any claim to privilege for many documents created in the course of internal criminal and regulatory investigations will have to be made on the basis of litigation privilege.

The Court of Appeal took what it described as ‘a realistic, indeed commercial view of the facts’ (paragraph 104). It took a far more generous approach to the question as to when criminal proceedings were ‘in reasonable contemplation’, finding that that point was reached when the internal investigation began. It said that Andrews J had been wrong to say that documents created for the purposes of settling or avoiding litigation were not covered by litigation privilege. It also rejected her opinion that if a document was created for the purpose of showing it to the other side it lost its privileged character, saying, correctly in our view, that the privileged character is not lost until the final document is actually sent to the other side.

The Court of Appeal found (paragraph 120) that the interviews undertaken by Dechert for ENRC as part of its internal investigation were covered by litigation privilege.

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