Erosion Of Legal Professional Privilege In The UK: An Irish Law Perspective

Author:Mr Brian Clarke, John Breslin and Malachi Sweetman
Profession:Maples and Calder
 
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In a recent judgment concerning an investigation by the UK Serious Fraud Office ("SFO") into alleged corruption in mining companies in Kazakhstan and Africa owned by the Eurasian Natural Resources Corporation Ltd ("ENRC"), the English High Court made potentially very significant findings on the scope and extent of legal professional privilege (which includes legal advice privilege and litigation privilege) in the context of regulatory investigations and more generally1.

It is unclear whether this decision (which is under appeal) will be followed by the Irish courts, which have not ruled on this specific issue in the past. Recent Irish cases do appear to reflect a more pro-active approach by certain regulators as regards the seizure of documents, however; and parties subject to, or potentially subject to a regulatory investigation need to be more careful than ever about the scope and conduct of any internal investigations and who they appoint to conduct them.

In the absence of a conflicting Irish authority, if this decision is followed by the Irish courts then this would amount to a radical re-definition of what is currently understood to be the scope of the privilege in this jurisdiction.

In particular, given the restriction on the scope of litigation privilege, it is now more important than ever that parties establish and implement clearly defined frameworks to maximise the possibility of being able to assert legal professional privilege where appropriate.

Background

The case relates to an ongoing criminal investigation into allegations of corruption in subsidiaries of ENRC. On being notified of this by a whistleblower in December 2010, ENRC appointed lawyers (Dechert) to investigate the allegations on its behalf, which included taking multiple witness statements and compiling reports, as well as internal discussions between ENRC and its lawyers as to the possibility of a criminal investigation and/or a "dawn raid" by the SFO about the allegations.

In August 2011 ENRC was invited by the SFO to and duly agreed to engage in a SRO Self-Reporting Mechanism (which required openness and transparency by ENRC) with the possibility of a lesser civil or criminal sanction for any offence found to be committed. Both the investigation and the SFO self-reporting mechanism proceeded until March 2013, when ENRC made a report to the SFO on the allegations, and the SFO initiated a formal criminal investigation.

As part of the investigation, the SFO sought to compel the provision of certain documentation which was resisted by ENRC on the basis that the material was privileged, having been created on its behalf by its lawyers and accountants in the context of the allegations. The SFO applied to the High Court for a declaration that the documentation was not privileged.

ENRC claimed legal professional privilege (either...

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